'Entangled interests: modelling the legal rights of children and parents'. Jonathan Montgomery Professor of Health Care Law

Some Questions About Law Children’s rights Parents’ rights Professional responsibilities

Children Act 1989 v Mental Health Act 1983 Welfare based Family orientated Holistic focus Problem solving Maintains other rights Court decisions Rights based Patient orientated Hospital focus Medically led General scope Tribunal review

Children’s Rights Welfare –Protection from harm - Promotion of wellbeing Autonomy –Competence, Participation, The Right to Make Mistakes, Independence, Value of Choices Privacy Development –Life chances, Autonomous Futures,

Parental Rights and Responsibilities Family privacy –Black box and hidden power? –Thresholds for ‘intervention’? Parental rights and responsibilities –Founded on child-rearing responsibilities –Limited by children’s interests?

Modelling the dispute: property Child Parent Doctor (State?)

Modelling the dispute: agency Child Parent Doctor (State?)

Modelling the dispute: family privacy? Child Parent Doctor (State?)

Modelling the dispute: conflict Child Parent Doctor (State?)

State and Professional Responsibilities Separation and prioritisation of interests –Advocacy for children in cases of conflict? –Role separation? Is professional advocacy state interference? –Avoidance of ‘abuse’ or promotion of best interests?

Child Protection Care orders –Risk to children –Attribution to inadequate parenting –Welfare of the child Child neglect –Failure to seek professional help –Failure to consent?

What are ‘welfare’ and ‘Best Interests’ about? Paternalism Indirect autonomy Structuring professional power –Courts –Welfare professionals

Children Act 1989, s.1 (1) When a court determines any question with respect to— (a) the upbringing of a child… the child’s welfare shall be the court’s paramount consideration.

Statutory principles Delay is prejudicial (s.1(2)) Welfare checklist (s.1(3)) No order principle (s.1(5))

Children Act 1989 welfare checklist (I) (a) the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding); (b) his physical, emotional and educational needs; (c) the likely effect on him of any change in his circumstances;

Welfare checklist (II) (d) his age, sex, background and any characteristics of his which the court considers relevant; (e) any harm which he has suffered or is at risk of suffering; (f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; (g) the range of powers available to the court under this Act in the proceedings in question.

Mental Capacity Act 2005 IF reasonable belief that –Lacks capacity –Best interests to care/treat THEN no sanction for lack of consent NB Not proxy consent but need for consent waived

Best Interests (MCA 2005) Reasonable belief after considering relevant circumstances including –Future capacity –Participation –Past wishes, feelings, beliefs, values –Named consultees, carers, ‘attorneys’, court appointed deputies No motive for death if life-sustaining treatment

Children Act 1989 v Mental Health Act 1983 Welfare based Family orientated Holistic focus Problem solving Maintains other rights Court decisions Rights based Patient orientated Hospital focus Medically led General scope Tribunal review