JM (A Child), Re

A child under 16 cannot give legally effective consent to surgery, although the child’s refusal is an important consideration whose weight increases with age and maturity. Where treatment is disputed, the court must exercise an independent and objective judgment applying the child’s welfare as the paramount consideration. The assessment is fact-specific and must balance all relevant medical, emotional, sensory and instinctive considerations. There is a strong, but rebuttable, presumption in favour of preserving life. A specific issue order under section 8 of the Children Act 1989 is the appropriate route for treatment decisions concerning parental responsibility, supplemented by inherent-jurisdiction relief where final declarations or other relief require it.

An NHS trust sought authorisation for urgent surgery on a ten-year-old child suffering from a rare and aggressive craniofacial osteosarcoma. The child and his parents opposed surgery and preferred Chinese medicine. The medical evidence was that, without removal of the tumour, the child would probably die within six months to a year, whereas surgery offered a substantial prospect of long-term survival but involved serious risks and possible disfigurement.

The parents did not engage with the proceedings and might have taken the child to Poland. The court considered the child’s welfare, the effect of his wishes and those of his parents, jurisdiction under Council Regulation (EC) No 2201/2003, and the correct procedural basis for authorising treatment.

1. Best interests. The court’s power arose because the child lacked capacity to decide the issue. The court had to make its own independent and objective judgment. The governing test was the child’s welfare, considered in its widest sense, including medical, emotional, sensory and instinctive considerations. The court could not weigh those matters mathematically, but had to balance them in the circumstances of the individual case.
2. Life, wishes and burdens. A strong presumption favoured prolonging life, reflecting the human instinct and desire to survive. That presumption was not absolute. It could be outweighed where the burdens, pain and suffering of treatment or continued life were sufficiently great and the quality of life sufficiently poor. The child’s wishes and those of the parents had to be given full weight, but the parents’ own wishes were relevant only insofar as they illuminated the quality and value of the parent-child relationship.
3. Application. The proposed surgery offered J a substantial chance of a long and fulfilling life. The alternative was a near-certain progression of the cancer followed by an agonising death. The court therefore concluded that surgery was in J’s best interests, notwithstanding his refusal and the opposition of his parents, and authorised the treatment plan, including removal and reconstruction of the affected jaw and necessary ancillary treatment.
4. Jurisdiction. The court was seised of the specific issue of J’s medical treatment. Under Articles 8(1) and 19 of Council Regulation (EC) No 2201/2003, the English court had jurisdiction and the Polish court had to decline jurisdiction concerning that treatment. Any issue concerning where or with whom J should live might, if he were permanently in Poland, be remitted under Article 15.
5. Procedure. The application should be treated as seeking a specific issue order under section 8 of the Children Act 1989, with leave under section 10(2)(b). Where final binding declarations or relief unavailable within a specific issue order were required, the application should also invoke the inherent jurisdiction and could be issued directly in the High Court. The court also directed that the matter be heard privately, subject to the statutory and procedural safeguards protecting J’s identity.