We’re hearing a lot about the influence of Europe at the moment within the ‘Brexit/Bremain’ debate about our EU membership. One of the most influential pieces of legislation influenced by Europe is our Human Rights Act 1998, which enshrined the European Convention of Human Rights so it is directly enforceable by the courts of England and Wales. Although under review by the current government, some of whose members wish to see it repealed, this law has shaped the way our judges interpret many of the other laws under which we live. It has had a particular effect where family justice is concerned, and Article 8 – colloquially enshrining the right to a private and family life – is one of the key provisions.
A case has just come through which shows how the court balances these ‘Article 8 rights’ where both sides in a dispute are claiming that the law is on their side. Here, a 16-year old (‘PD’) had formed a settled intention to change his gender to become male, after experiencing gender identification and mental health issues throughout his adolescence. His parents, who had adopted him as a 6-year-old, could not accept his decision.
PD went into foster care after the parent-child relationship broke down. In the course of contact the parents insisted on referring to PD by his previous name, causing him great distress. He, sadly, decided he wanted nothing more to do with them, and asked the local authority, in whose care he was, not to give them any more information about him and his treatment.
The legal problem was that under the Children Act, a local authority looking after a child has an obligation to consult with and give information to the parents of that child. A child is anyone under 18 years of age. However, by a competing piece of legislation (the Family Law Reform Act) it is clear that a child of 16 can give consent to the medical and surgical treatment that he would require for gender reassignment; there is also established case law that establishes that parental consent for medical treatment is not required when the child is of sufficient maturity to decide for him or herself. There was no question here about consent; the question was whether the child had a right to keep his medical information private from his parents, and so to stop the local authority from telling them any information.
The parents felt that their Article 8 rights to family life should be respected and that they should receive the information, despite PD’s objections.
The court read a passage from a judgment in an earlier case on medical matters and young people, as follows:
“It is appropriate to bear in mind that the European Court of Human Rights attaches great value to the rights of children. Furthermore, the ratification by the United Kingdom of the United Nations Convention on the Rights of the Child in November 1989 was significantly showing a desire to give children greater rights. The ECHR and the UNC show why the duty of confidence owed by a medical professional to a competent young person is a high one and which therefore should not be overridden except for a very powerful reason. In my view, although family factors are significant and cogent, they should not override the duty of confidentiality owed to the child. It must not be forgotten that this duty was described in Z v Finland as a vital principle in the legal system of all Contracting Parties to the Convention.”
And from the same case, which considered similar subject matter:
“The European Commission on Human Rights has explained the existence of family ties depends upon the real existence and practice of close family ties. It is not clear why the parent should have an Article 8 right to a family life where first the offspring is almost 16 years of age and does not wish it, second where the parent no longer has a right to control the child … and third where the young person, in Lord Scarman’s words, “has sufficient understanding of what is involved to give a consent valid in law”. … Parental right to family life does not continue after the time when the child is able to make his own decisions. So parents do not have Article 8 rights to be notified of any advice of the medical profession after the young person is able to look after himself or herself and make his or her own decisions.”
The court dealing with this case agreed: PD’s right to medical confidentiality outweighed any apparent legal obligations on the part of the local authority to keep his parents informed against his consent, and outweighed any ‘right to know’ on the parents’ side. Perhaps the sad situation for this family isn’t as stark as it seems, as the parents are liaising with PD’s treatment centre to try to improve their understanding of his position with the hope of reconciliation. The court endorsed their hope:
“Like the parents, I very much hope the time will come when a reconciliation is effected between P and the parents. In my judgment, however, the surest way of seeking to secure that outcome, is to respect P’s current wishes and feelings.”
It’s clear that when there is a clash of ‘Article 8 rights’, the child’s rights take priority over the parents’. As soon as they can make decisions about their medical treatment, children are entitled to confidentiality in that respect. We hope that this family manages to come to an understanding in time. If you’d like to talk about anything raised in this blog or any other family law matter, give us a call on 01223 443333 and ask for an appointment with Sue, Simon, Gail, Tricia or Adam.