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Ask The Legal Expert: Family Disputes Over Medical Treatment

View profile for Angela Killa
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Angela Killa, from the Family Law team, tackles an issue around parental disputes over medical treatment for a child.

My six-year-old daughter has hearing problems.  My ex-husband and I cannot agree on whether she should have a procedure, under general anaesthetic, to have grommets fitted and it 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.

In the first instance 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 an application is made 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 both 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 Welfare Officer, for her view.  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, please contact Angela on: 01267 248893 or by email at: angela.killa@jcpsolicitors.co.uk

Angela is an Associate Solicitor in our Family Team, based at our Carmarthen Office. Angela specialises in all aspects of Family Law including complex children matters, divorce and financial remedies. Angela is a fluent Welsh speaker. 

The question posed is based upon a hypothetical situation.

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