Parents v Doctors -Who get's to decide?


When the Family Court has to be involved in the medical treatment of children, it is unlikely that there will be an easy (or happy) outcome.

This year, in the United Kingdom, the case of Charlie Gard attracted a significant amount of media attention. Many public figures and celebrities sent tributes to Charlie’s parents, including Pope Francis, after learning of Charlie’s passing.

If you have not heard about it, here is a quick summary:

  • On 4 August 2016, Charlie Gard was born to new parents, Chris Gard and Connie Yates;

  • Not long after his birth, Charlie was diagnosed with mitochondrial DNA depletion syndrome. Charlie’s condition rapidly deteriorated, resulting in him having severe progressive muscle weakness and brain damage. Charlie could not move his arms or legs, or breathe unaided, and was hospitalised in the intensive care unit at the Great Ormond Street Hospital;

  • In January 2017, Charlie’s parents learned that Charlie may be able to be treated by a clinician in the United States and set up a crowdfunding page to help finance this treatment;

  • On 3 March 2017, against Charlie’s parent’s wishes, the Great Ormond Street Hospital applies to the High Court, for a declaration that their treatment of Charlie’s life support cease, so Charlie can be provided with palliative care;

  • On 11 April 2017, the High Court, made the decision to stop Charlie’s life-support treatment, as the experimental treatment was not in his best interests. In making this decision, the Court noted that the evidence presented in this case provided that the type of treatment the parents were seeking in the United States ‘had not even reached the experimental stage on mice’, and ‘the treatment would be of no effect but may well cause, pain, suffering and distress of Charlie’;

  • On 25 May 2017, following an application from Charlie’s parents, the Court of Appeal reviewed the case and dismissed the parent’s appeal, emphasising the case law that the best interests of the child will prevail and apply even when the parents, have a different view as to what is in the best interests of their child;

  • On 8 June 2017, after Charlie’s parents applied to the Supreme Court, the Supreme Court made the decision to uphold the previous judgement, noting that the parents are not entitled to insist upon treatment by anyone which is not in the child’s best interests. Upon review of the evidence provided, the Court found that keeping Charlie life support would prolong Charlie’s suffering without any realistic prospect of improvement;

  • On 27 June 2017, following submissions made by Charlie’s parents, the European Court of Human Rights makes the decision not to intervene in the case;

  • In the evening of 28 July 2017, Charlie Gard passed away.

Similar to the case of Charlie Gard, in 2016, the Family Court of Western Australia had to embark on the difficult task of determining the medical treatment of a child, Oshin Kiszko, following an application made by Princess Margaret Hospital, albeit not with such an international media following.

Understandably, cases like Charlie’s and Oshin’s can evoke emotions and reactions from the public, in relation to both the parent’s and the treating physician’s views (hence the strong media following of the cases), and there will never really be an outcome to keep everybody happy, as arguably, these cases usually become muddled with a person’s own morals and values.

However, one thing to remember is that the Family Court will always put the child’s best interests first and foremost in making any decision in relation to children’s issues, including the decision of whether medical treatment that overrides the parents. The determination of a child’s best interests is not always easy, as stated by the Honourable Justice O’Brien in Oshin’s case:

The determination of the bests interests is not a precise science. It is multifaceted and complex. It is susceptible to very different conclusions being drawn by different people of equal compassion, sincerity and integrity.

Consequently, should you ever find yourself in the unfortunate situation of Charlie’s and Oshin’s parents regarding medical treatment of your child (or in dispute with your ex-partner regarding you child or children), it is important that you seek legal advice from an experienced Family Lawyer.

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Sunday, 22 September 2019