Tot to have op despite mother’s objections
A court has granted a father permission to have his 5-year-old daughter undergo surgery to have her adenoids and tonsils removed, despite the girl’s mother opposing the operation.
In a recently released judgment, the High Court in Christchurch refused the mother’s application for leave to appeal orders made by the Family Court about six months ago, allowing the girl’s surgery to go ahead.
According to the court decision, which refers to the child by the pseudonym “Kate”, the girl’s parents were formerly married.
Kate’s father applied for a Family Court order under the Care of Children Act to enable Kate to have her tonsils and adenoids removed.
He provided a written affidavit explaining he had tried to resolve the matter out of court but with no success. He said Kate’s enlarged tonsils affected her eating and sleeping, and caused her to snore.
A letter and medical report by two experts were also provided – both agreed an operation was in the girl’s best interests.
Tonsils are graded from 0-4. Grade 4, when the tonsils meet in midline is the worst and may be associated with obstructive sleep apnea. It can also have short and long-term implications like growth hyperactivity, poor concentration and developmental milestone plateau.
The court also considered a report from a lawyer acting for Kate in which he confirmed she had an age-appropriate understanding that there was an issue with her tonsils. He said he supported an order based on the best possible medical advice and, given the clear medical advice, it was appropriate for the operation to occur.
Kate’s mother opposed the application on several grounds, including that she was “obstructed” by not being able to produce medical evidence, that the medical evidence provided relied on the father’s allegations, that the doctors ought to have been cross-examined, that the father had not produced GP records to prove that surgery for Kate is a last resort, and that the matter was not urgent.
The Family Court rejected the mother’s opposition, saying it was clearly contrary to Kate’s welfare and best interests to leave the matter unattended when it was to her detriment and could be relatively easily addressed.
The court said there seemed to be a “theme” to these kinds of proceedings of “a desire to bind children into a web of litigation” rather than taking a child-focused approach.
“As the High Court has observed, and my deep sadness is that it seems to continue, [the mother’s] obsession with process has proven to be a distraction from the real issue which is the child’s wellbeing.”
The Family Court made an order that Kate have her tonsils and adenoids removed, and that her father have sole authority to make any consequential guardianship decisions relating to follow up treatment, follow up appointments, applying for philanthropic support or paying privately for the operation.
The court also ordered that the mother reimburse the father $199 for a second medical report since that was only obtained at her request.
The mother turned to the High Court to fight the Family Court orders, stating a miscarriage of justice had occurred. She submitted numerous grounds, including that she had requested cross-examination to occur but the court did not direct this, the court ignored two online medical articles she had submitted, the court did not allow her to obtain a second opinion to produce as evidence, and the court ignored the father’s “prior inconsistent statement and evidence”.
In its decision, the High Court addressed each one of the mother’s submissions, but found no error of law had occurred that constituted a miscarriage of justice, and her appeal was dismissed.
Cases of separated parents fighting legal battles about their children’s healthcare are fairly common in New Zealand courts.
Several prominent cases in recent years have involved disagreements over vaccinations.