PD v SD & Anor

Where a looked-after young person who has sufficient understanding to make medical decisions seeks privacy from parents, the court must balance the young person’s and parents’ Article 8 rights. The child’s rights prevail where the balance falls decisively in their favour. Statutory duties to consult parents and provide information do not require disclosure contrary to the young person’s welfare, privacy and firmly expressed wishes. A parent’s rights exist primarily to enable parental duties until the child is sufficiently mature to make independent decisions.

The applicant was a 16-year-old adopted child placed with local-authority foster carers under section 20 of the Children Act 1989. After expressing a wish to live as male and receiving gender-related assessment, he sought declarations preventing his adoptive parents from receiving information about his life or medical treatment. The parents accepted that medical information should remain confidential but sought quarterly welfare updates. The local authority sought guidance on its duties under sections 22 and 26 of the Act and the Care Planning, Placement and Case Review (England) Regulations 2010. The central issue was whether those duties should be exercised despite the applicant’s firmly expressed wishes and privacy rights.

1. Declaratory relief granted. The applicant’s wishes concerning disclosure to his parents were to be respected.
2. Under section 8(3) of the Family Law Reform Act, a 16-year-old may give valid consent to medical and surgical treatment.
3. Sections 22 and 26 of the Children Act 1989, together with the Care Planning, Placement and Case Review (England) Regulations 2010, imposed duties on the local authority to consult and provide information. Those duties had to be exercised consistently with the applicant’s welfare, wishes and Convention rights.
4. The court followed Yousef v Netherlands [2003] 1 FLR 210 in treating the child’s Article 8 rights as prevailing where they conflicted with the parents’ rights. It agreed with the analysis in Regina on the Application of Sue Axon v Secretary of State for Health [2006] EWHC 37 (Admin), supported by Gillick v West Norfolk and Wisbech Health Authority [1986] 1 AC 112, that parental authority exists to support parental duties only until the young person is sufficiently mature to make independent decisions.
5. Medical information was private and confidential. The applicant’s age, maturity, firm wishes, distress and decision to disengage from family life meant that the balance fell decisively in favour of his Article 8 rights. Disclosure would be contrary to his welfare and privacy and would undermine any prospect of reconciliation.
6. The court declined to adopt the exceptional-circumstances formulation in Re C (Care: Consultation with Parents not in Child’s Best Interests) [2006] 2 FLR 787 as the primary approach. The correct approach was to balance the competing Article 8 rights.