1. 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

2. 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

3. 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

4. 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

5. 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)

6. 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)

7. 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

8. 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 01.12.03, if (iii) mother has executed and registered PR agreement or (iv) if he obtains a PR order from a court  …

9. 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)  …

10. 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  …

11. 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)

12. 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

13. 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

14. 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

15. 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 12.20 FPR 2010)

16. 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

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

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