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32 Child & Fam. L. Q. 141 (2020)
Parental Decisions and Court Jurisdiction: Best Interests Or Significant Harm?

handle is hein.journals/chilflq32 and id is 141 raw text is: 141 Parental decisions and court jurisdiction: best interests or significant harm? Rachel Taylor* Keywords: Parental responsibility - medical treatment - children's rights The case of Charlie Gard raised a fundamental point of principle as to the nature of parental authority and the relationship between parental and state responsibility for the upbringing of children. This article considers that the courts were correct, as a matter of law, to reject the proposition that judicial intervention in the mutual decisions of parents may only take place in cases of significant harm. The law regards the upbringing of children not as a matter of exclusive parental rights, to be defended unless forfeited, but as a collaborative responsibility in which parents take the leading role. That primary responsibility of parents is best recognised through careful respect for the relationship between parents and children in determining children's welfare. Introduction: 'a question of principle of the utmost importance' In 2017, the plight of a desperately ill British baby captured attention around the world. Charlie Gard had been born with a severe mitochondrial condition that progressively caused irreversible brain damage and left him unable to hear, move or breathe independently. His doctors considered that this damage was irreversible and would soon be fatal. In consequence, his medical team at Great Ormond Street Hospital NHS Foundation Trust (GOSH) concluded that it would be in Charlie's best interests for life-sustaining treatment to be withdrawn to allow him to have a peaceful and dignified death. Charlie's devoted parents disagreed. They had scoured the world to find a treatment that might improve his condition and had found hope in nucleoside bypass therapy. This experimental treatment, as yet untested on people or even animals with Charlie's condition, was offered by a specialist in the USA who considered that there was a 'theoretical possibility' that it may be of benefit to Charlie. Having raised the costs through crowdfunding, the parents intended to remove Charlie to the USA to start treatment. Unable to resolve the disagreement with the parents, GOSH applied to the court for a declaration that that it was lawful, and in Charlie's best interests, for him not to be given nucleoside therapy and for ventilation to be withdrawn. The ensuing court proceedings took place in the intense glare of media attention and frenzied debate on social media. The parents received support from around the world, including from the Pope and from the President of the USA. Nonetheless, at every stage of the judicial process' the courts' assessment of Charlie's best interests accorded with that of his doctors. Charlie's life support was withdrawn just one week before his first birthday. * Rachel Taylor, Associate Professor of Law, University of Oxford, and Fellow in Law, Exeter College, Oxford. This article was first published as Chapter 3 in I Goold, J Herring and C Auckland (eds), Parental Rights, Best Interests and Significant Harms: Medical Decision-Making on Behalf of Children Post-Great Ormond Street Hospital v Gard (Hart Publishing, 2019). It is reprinted here, with minor modifications, by kind permission of Hart Publishing. 1 The procedural history of the case is complex and collectively this article refers to the case as Gard. The High Court granted the declarations sought by GOSH: Great Ormond Street Hospital for Children NHS Foundation Trust v Yates and Others 12017 EWHC 972 (Fam), 12018] 1 All ER 569. This decision was upheld on appeal by the Court of Appeal: Great Ormond Street Hospital for Children NHS Foundation Trust v Yates and Others [2017 EWCA Civ 410, [2018] 4 WLR 5.