Children’s best interests and parents’ views: challenges from medical law

Abstract

In many domains there are tensions between the rights and interests of children, parents and the state. In medical law this has come under scrutiny in England and Wales when considering how parental choice can be accommodated in best interests decision-making in relation to the care of critically ill children. This follows a series of high-profile court cases and, in February 2020, the second reading of the Access to Palliative Care and Treatment of Children Bill in the House of Lords. Through a novel synthesis of source material I examine two key proposals in this Bill in relation to the treatment of children with a life-limiting illness: (i) that courts should assume that any medical treatment proposed by those with parental responsibility is in the child’s best interests unless it poses a disproportionate risk of significant harm; and (ii) that mediation between parents and health service providers should be mandatory. This analysis elucidates how the Bill, as currently drafted, would modify the ordinary best interests approach in relation to children with life-limiting illnesses both substantively and procedurally. Further, by widening the lens–from the Bill’s text to its context–I illustrate challenges inherent in translating the law into meaningful action on the ground, thus shifting the focus from (legal) text to the broader context.