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Ask The Legal Expert - Disagreements over medical care for your Child?

View profile for Jill Bulteel
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My six-year-old daughter has hearing problems. My ex-husband and I, who both have Parental Responsibility, cannot agree on whether she should have a procedure, under general anesthetic, to have grommets fitted. This disagreement is causing us all great distress. Where do we stand legally on making a choice for our daughter?

This must be a stressful time for you all, not least for your daughter. As both you and your ex-husband have Parental Responsibility for your child you are both in a position to consent or oppose medical treatment – and in some ways, this is making your life trickier.

I would advise you to try to reach an amicable solution via mediation, as the procedure is not one that would be considered an emergency, so you have time to engage in mediation. If mediation is not successful, or if your circumstances were more urgent, I would advise that you make an application for a Specific Issue and/or a Prohibited Steps Order.

A Specific Issue Order asks the Court to decide on a specific aspect of Parental Responsibility that the parents have been unable to agree on, whereas a Prohibited Steps order is an Order preventing a certain action involving a child.

In your application you should explain clearly what your view is and why you want the court to make the order you are seeking. You should consider trying to gather evidence that supports your position, such as articles from medical journals. It may be appropriate during the court proceedings to obtain expert medical advice. It’s likely that such evidence would be obtained on a joint basis by you and your ex-husband agreeing what questions should be asked of the expert. You may also both be responsible for any cost involved.

If your daughter was a little older, around eight or nine, the Court would consider asking her, via a Court appointed Welfare Officer, for her view within a wishes and feelings report. However, she is a little young for her opinion to carry weight at the moment, since she is unlikely to fully understand the consequences of her decision.

If necessary, the Court will reach a decision on your behalf as to whether your daughter should have the procedure. In doing so, the Court will consider a number of factors in order to decide what is in her best interests as set out in Section 1(3) of The Children Act 1989, called the Welfare Checklist. Your daughter’s welfare will be the Court’s paramount consideration and it is likely to look at the pros and cons, the benefits and risks of your daughter having the procedure done, as well as considering what the alternatives might be. Then, after careful consideration, the Court will make a decision on behalf of your daughter.

For more information, contact Jill on: 01443 490880 or email: jill.bulteel@jcpsolicitors.co.uk

For further advice, please contact our specialist Family Solicitors in:

  • Swansea: 01792 773773
  • Cardiff: 02920 22 5472
  • Carmarthen: 01267 234022
  • Caerphilly: 02920 860628
  • Cowbridge: 01446 771742
  • Haverfordwest: 01437 764723
  • Fishguard: 01348 873671
  • Pontypridd: 01443 408455

This question posed is based upon a hypothetical situation.

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