Recent legal developments affecting children and their rights

At Brave Legal we often act on behalf of children, so it’s important to be aware of the legal issues that affect them and their rights, particularly when it comes to questions of consent and medical treatment. Case law in relation to these issues is always emerging and recently, two cases involving children have garnered media attention.

Best interests of a child

In the United Kingdom Court of Appeal, Justice Hayden was required to make an extremely difficult decision about the medical treatment of 12-year-old, Archie Battersbee.

On 7 April 2022, Archie’s mother found him unconscious and deprived of oxygen for nearly 40 minutes. He was treated at the Royal London Hospital where tests were performed which showed that he had suffered a catastrophic hypoxic ischaemic brain injury. Archie was placed on life support and his treating practitioners unfortunately advised that there were no prospects of recovery and recommended that the life support be withdrawn.

Archie’s parents raised moral objections to removing the life-supporting treatment and the matter was referred to the Court to decide on whether treatment should continue or be withdrawn in the circumstances.

When making their decision, the Court of Appeal upheld the prevailing principle being that any decision needs to be made in the best interests of the child. The Court of Appeal ultimately found that it was not in the best interest of Archie to continue mechanical ventilation and life-sustaining measures.

The courts in Australia take a very similar approach to that in the United Kingdom and ultimately, the question considered central for the decision maker is what is in the best interests of the child.

A Gillick competent child

“Gillick competence” is a principle which relates to a child under the age of 18 who is considered to have properly consented to their own medical treatment.

In a recent decision in Re A [2022] QSC 159, the Supreme Court of Queensland considered the decision of a Gillick competent child in the setting of gender dysphoria. In this case, the Court considered the question of whether an almost 17-year-old child who was born as female but identified as male could consent to the administration of gender affirming hormone treatment. The application was brought by the mother on behalf of the child and the respondent was the father of the child and who did not consent to the treatment.

The Supreme Court ultimately decided that the child was Gillick competent and as such, was able to make a decision about their treatment without the consent of either parent. The Court went further and made the following comment:

“…Once it is concluded that the child is Gillick competent, the question must be asked why it is that a child who is almost 17 years of age, is Gillick competent and is firm in the view of what treatment they would like, should be denied the opportunity to do so without the consent of both parents. Such a conclusion would be inconsistent with the human rights of the child and a recognition of the importance of Gillick competence and its effect as a matter of law…”

This case affirms that once a child is determined as Gillick competent, the question of consent from a third party does not need to be considered any further and that the child can capably consent to the proposed treatment.

There are a multitude of issues to consider when representing a child in a legal matter.

As personal injury lawyers who represent children, it is important to have an understanding of the emerging case law and the rights that are afforded to children under the law.

[1] Re A [2022] QSC 159 (31 March 2022) [24].