SAMPLE TITLEChild Protection: From Examination to Court Child Protection: From Examination to Court - October 2011 PATRON HRH The Princess Royal Children and Consent Charles Prest Barrister, Leeds

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Learning Objectives Children and Consent To understand:  who in law can give consent to the examination (or treatment) of a child  what additional permission is required if the examination is specifically for a court report

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Caveats! Children and Consent  This is the law in England and Wales – not Scotland or Northern Ireland  It’s slightly simplified in places

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Consent is always desirable but not always necessary Children and Consent  If consent cannot be obtained, it is lawful to give immediately necessary treatment on the basis that it is in the child’s best interests

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Consent must be… Children and Consent  … properly informed, and  … from someone who can lawfully give it (N.B. the ‘single flak jacket’ rule)

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Who can give consent? #1 Children and Consent (1) the child, if aged 16  From the age of 16, a child is legally presumed to be able to give consent to medical treatment (s8 FLRA 1969)

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Who can give consent? #2 Children and Consent (2) the child, if Gillick / Fraser competent  Below the age of 16, a child can give consent if ‘Fraser / Gillick competent’ i.e. has “sufficient understanding or intelligence to enable him or her to understand fully what is proposed” (Lord Fraser, Gillick v West Norfolk and Wisbech AHA, [1986] 1AC 112)  So the level of understanding required depends on the complexity of the issues

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Who can give consent? #3 (1/5) Children and Consent (3) any competent person with parental responsibility  Mother  Father if (i) ever married to mother, if (ii) registered as father on birth certificate after , if (iii) mother has executed and registered PR agreement or (iv) if he obtains a PR order from a court  …

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Who can give consent? #3 (2/5) Children and Consent  Anyone (including a father) in whose favour a residence (or special guardianship) order has been made  (a stepparent under a duly executed and registered PR agreement)  (a legal guardian whose appointment has taken effect – i.e. those with PR have died)  …

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Who can give consent? #3 (3/5) Children and Consent  Any person – effectively a local authority – in whose favour the court has made an emergency protection order  A local authority in whose favour the court has made a care or interim care order  …

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Who can give consent? #3 (4/5) Children and Consent  An adoption agency while a child is placed for adoption  Prospective adopters while a child is placed for adoption  An adoptive parent (N.B. birth parents’ PR will have been extinguished)

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Who can give consent? #3 (5/5) Children and Consent  N.B. the consent of any one of these is sufficient in law – even if others with PR refuse consent

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Who can give consent? #4 Children and Consent (4) The Court  The court can override the otherwise lawful decision of the child / someone with parental responsibility  The court effectively ultimately applies a ‘child’s best interests’ test

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Summary Children and Consent  “… I now prefer the analogy of the legal ‘flak jacket’ which protects the doctor from claims by the litigious whether he acquires it from his patient who may be a minor over the age of 16, or a ‘Gillick competent’ child under that age or from another person having parental responsibilities … Anyone who gives him a flak jacket … may take it back, but the doctor only needs one and so long as he continues to have one he has the legal right to proceed” Donaldson MR, Re W [1993] 1 FLR 1

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Expert in family law proceedings: Children and Consent  As well as requiring consent (see above), no person may cause a child to be medically / psychiatrically examined / assessed for purpose of preparation of expert evidence without the permission of the court (rule FPR 2010)

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Reviewing learning objectives Children and Consent To understand:  who in law can give consent to the examination (or treatment) of a child  what additional permission is required if the examination is specifically for a court report

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Professional Practice Children and Consent  GMC Guidance  RCPCH Child Protection Companion (new edition forthcoming)

SAMPLE TITLE Child Protection: From Examination to Court - October 2011 Questions?