Parental rights vs the welfare of the child
CHARLIE GARD was born on August 4, 2016 and died on July 28, 2017. Although he lived for less than a year, the legal lessons that we have learnt during the court battles between the Great Ormond Street Hospital (GOSH) and his parents over the recommendation to end or prolong medical treatment will be recounted for many years to come.
Within one month after his birth, Charlie was diagnosed with a rare medical condition that resulted in him being unable to move his arms and legs or to breathe on his own. GOSH determined that Charlie should be taken off life support, while his parents wanted to take up the offer to have him undergo an experimental treatment in the USA. As there was no agreement, GOSH sought the court’s intervention.
With specific focus on the oral decision delivered by Lady Hale on June 8, 2017 in the UK Supreme Court, I will highlight below some of the most important points made in that ruling.
The relevant legal test was whether further treatment would be in Charlie’s best interest.
The welfare of the child shall be the paramount consideration in any question concerning the upbringing of the child in any proceedings.
Where there is a significant dispute about a child’s best interests, the child himself must have an independent voice in that dispute. It cannot be left to the parents alone.
Parents are not entitled to insist on treatment by anyone that is not in their child’s best interests.
The clear statement from the European Court of Human Rights is that, if there is conflict between [the rights of parents and the rights of a child], the child’s interests must prevail.
Although the UK’s Children’s Act and the European Convention do not apply to Jamaica, the principles from Charlie’s case still do because the relevant laws in Jamaica make it clear that the welfare of the child is the paramount consideration when dealing with issues concerning that child’s upbringing. For that reason, a parent who is facing a similar challenge in relation to the medical treatment for a child is likely to have to confront the same challenge Charlie’s parents did.
A loving parent’s inclination is to do all that he or she can to preserve a child’s life, but the ruling in Charlie’s case tells us that there needs to be medical advice that suggests that the treatment will benefit the child rather than prolonging suffering. For the parent, the expression of hope will not be enough.
This will be a very delicate issue for any court, which must focus on the legal issues while appreciating the deep emotional concerns.
Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Pleases end questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.