UNIVERSITY OF THE WEST INDIES

FACULTY OF LAW, MONA

LAW3220 - FAMILY LAW II

WORKSHEET 1 - THE RIGHTS OF THE CHILD

AIMS:

In this topic you will cover:

 The theoretical construct of the rights-based approach to child law

 The United Nations Convention on the Rights of the Child 1989 (CRC)
 The definition of child in the various spheres of legal action
 How much of the principles of the CRC has been incorporated into the domestic law of the Commonwealth
Caribbean
 The law relating to the right of the child to consent to or refuse medical treatment as an expression of child
autonomy

OBJECTIVES:

At the end of this topic you will be:

 Able to explain the theoretical basis of the rights-based theory in child law
 Aware of the provisions of the CRC and their meaning within the context of the four P’s
 Able to articulate the extent to which the CRC is incorporated in the domestic law of the Commonwealth
Caribbean states
 Able to relate the principles enshrined in the CRC to specific aspects of the law relating to children
 Able to discuss how the rights-based theory, and child autonomy is applied in the area of child’s right to
consent or refuse medical treatment
 Able to solve scenario questions on the issue of refusal to consent to medical treatment

READINGS

-The United Nations Convention on the Rights of the Child, 1989 [distributed]
-UNICEF Implementation Handbook for the Convention on the Rights of the Child pp.1-15, 85-89
-Andrew Bainham, Children: The Modern Law 3rd edn. (Jordan Publishing Ltd 2006) Chaps. 2 (Part II) and 8
-Jonathan Herring, Family Law 5thedn. (Longman Pearson) pp. 434-458
-Stephen Cretney, Principles of Family Law 7th edn. (Thompson/Sweet & Maxwell 2003) Chap. 17
-Nigel Lowe and Gillian Douglas, Bromley’s Family Law, 10th edn. (Oxford 2007) pp. 1-11, 22-26, 369-370
-Jane Fortin, Children’s Rights and the Developing Law 2nd edn. (Cambridge University Press) pp. 4-27, 35-49
-Michael Freeman, “What's right with rights for children” [2006] 2 International Journal of Law in Context 89-98
[Westlaw]
-Michael Freeman: “Rethinking Gillick” (2005) 13 IJCR 201
-Ann Morris, “Gillick, 20 years on: arrested development or growing pains?” P.N. 2005, 21(3), 158-175 [Westlaw]
-Dave Ramsaran, “Globalisation and Children’s Rights in the English Speaking Caribbean” pp. 171 et seq. in
Barrow, C. (ed.) Children Rights: Caribbean Realities (Ian Randle Publishers) 2002 [Law Library Issue Desk]
-Leighton Jackson, Legal Protection of HIV/Orphans and other Vulnerable Children in Guyana (World Bank
Report) 2006
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 The United Nations Convention on the Rights of the Child 1989 (CRC )

The CRC is the first legally binding universal code outlining the rights of the child. It was adopted by the UN
General Assembly in November 1989 and to date stands as the most comprehensive and internationally accepted
document on the rights of the child. The CRC has been ratified by all Commonwealth Caribbean states and all other
countries of the world with the exception of the United States and Somalia.

The 54 articles of the Convention may be grouped into four categories of rights and a set of guiding principles.

Guiding principles: The guiding principles of the Convention include non-discrimination; adherence to the best
interests of the child; the right to life, survival and development; and the right to participate. They represent the
underlying requirements for any and all rights to be realized.

Survival and development rights: These are rights to the resources, skills and contributions necessary for the
survival and full development of the child. They include rights to adequate food, shelter, clean water, formal
education, primary health care, leisure and recreation, cultural activities and information about their rights. These
rights require not only the existence of the means to fulfil the rights but also access to them. Specific articles address
the needs of child refugees, children with disabilities and children of minority or indigenous groups.

Protection rights: These rights include protection from all forms of child abuse, neglect, exploitation and cruelty,
including the right to special protection in times of war and protection from abuse in the criminal justice system.

Participation rights: Children are entitled to the freedom to express opinions and to have a say in matters affecting
their social, economic, religious, cultural and political life. Participation rights include the right to express opinions
and be heard, the right to information and freedom of association. Engaging these rights as they mature helps
children bring about the realization of all their rights and prepares them for an active role in society.

By going to this linkhttp://www.unicef.org/crc/index_30177.html

you can click on any of the categoriesand link to a plain-
language explanation of the applicable articles in the
Convention.

The principles contained in the CRC are popularly referred to as ‘The Four P’s’:

PROTECTION – PREVENTION – PROVISION – PARTICIPATION

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 THE THEORY OF THE RIGHTS-BASED APPROACH TO CHILD LAW

In this section we explore the concept of the rights-based approach to

child law so that we can understand and critically assess the manner in
which the legislature and the courts approach legal issues relating to
children.

What is the significance of children having rights, rather than just being people who should be looked after? Why
emphasizethe rights of the child rather than the duties towards the child?

“Rights have a transformative aspect because they have the potential to reduce
victimization and dependence by changing the rights holder into a powerful
individual who commands the respect of those in the legal system.... Rights
create mutual zones of respect, challenging those who want to act in the best
interests of children to promote the empowerment of children instead.” –Federle

Read the following article to answer this question:

M. Freeman, “What's right with rights for children” [2006] 2 International Journal of Law in Context 89-98,
[available on Westlaw]

 The language of rights can make visible what has too long been
suppressed. It can lead to new stories being heard in public.

 Rights are important because they are inclusive. They are universal,
available to all members of the human family.

 Rights are indivisible and interdependent.

 Rights are important because they recognise the respect the bearers are
owed.

 We see rights as ‘trumps’. They cannot be knocked off their pedestal

because it would be better for others, or even society as a whole, were
these rights not to exist.

 Rights are important because those who have them can exercise
agency. Agents are decision-makers. They are people who negotiate
with others, who alter relationships or decisions, who can shift social
assumptions and constraints.

 Rights are an important advocacy tool, a weapon to use in the battle to

secure recognition.

 Rights offer legitimacy to campaigns, to pressure groups, to lobbies, to

direct and indirect action, in particular to those who are disadvantaged
or excluded. They offer a way in, they open doors.

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  Rights are also a resource: they offer a reasoned argument. They can
put a moral case.

 Rights offer fora for action.

 What the excluded lack most is a right one rarely finds articulated. This
is the right to possess rights.

Should children have all the rights of adults and, if not, on what moral or reasoned basis should their rights
be limited or should they be given extra rights over and above those given to adults?

Child Liberationist View

Children should have all the rights that adults have – including the right to vote, work, travel, use drugs and to
engage in sexual relations.

Holt says that the law supports the view of a child being ‘wholly subservient and dependent...Being seen by older
people as a mixture of expensive nuisance, slave and super-pet’.

“[L]iberationists may have done the concept of children’s rights a disservice, in so far as they convey the misleading
impression that it is almost wholly concerned with giving children adult freedoms.’ – Jane Fortin

However the author reasons that the importance of the liberationists is that they generated a reassessment of
children’s capacity for autonomy and responsible action and that it is now a fairly widespread view that it is wrong
to underestimate children’s abilities and moreover that they should be encouraged to develop their independence.

The Modified Liberationist View

The same laws should apply to adults and children, for example, the law bans those incapable of driving
competently not on the grounds of age. Children are discriminated against not on the basis of competence but merely
on the grounds of age.

Jonathan Herring asks provocatively:

Why is a 16-year old deemed old

enough to consent to have sexual
intercourse with her Member of
Parliament but not old enough to vote
for him?

Fortin summarizes that even quite young children are capable of competent thought and of making informed choices
than some adults. Adults like children make mistakes and until children are trusted with more decision-making, they
are denied the opportunity of gaining experience in doing so and of developing any decision-making skills.

What is the morally relevant distinction between adults and children that justify the discrimination?

• Bureaucratic difficulties in assessing competence

• How many adults could pass the prescribed tests? Abandoning the bright line test of age would negatively
affect the rights of adults.
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 • Age provides a predictable criterion which enables people to plan their lives without fearing that they will
be found incompetent, based on other equally ‘contested norms.’
• The failure to regulate childhood would lead to more exploitation of children rather than less.
• Children have a right to be children and not adults. They have a whole range of rights such as the right to
care and protection which have little to do with making decisions.

Meaning of Rights

What do rights mean? It connotes autonomy. Autonomy is the broadest conception of the power to exercise one’s
rights.

• ‘The most dangerous but precious of rights: the right to make their own mistakes’
- Eekelaar

• Each person being permitted to pursue his/her own vision of the ‘good life’

How is this applied to children?

• Children do not have the capacity to develop their own version of their ‘good life’ – in determining long-
term goals.

• The way a child lives her childhood affects the range of choices and options available in later life, e.g. – a
child choosing not to go to school affects the range of opportunities the child will have later in life and the
breadth of her autonomy.

• Therefore, it is justifiable to infringe a child’s autonomy early in life in order to maximise her autonomy
later in life.

Eekelaar’s three kinds of Child Interest

1. Basic interests - the essential requirement of living: physical (food, clothing and shelter), emotional (love
and care) and intellectual (education and stimulation).

2. Developmental interests – ‘all children should have an equal opportunity to maximise the resources
available to them during their childhood (including their own inherent abilities) so as to minimise the
degree to which they enter adult life affected by avoidable prejudices incurred during childhood’.

3. Autonomy interest – the freedom to make her own decision about their life.

Is there potential conflict between these interests? If so how would you rank them?

Eekelaar’s Conclusion –

Children should make decisions for themselves even if those were bad mistakes unless the decision involved
infringing one of the basic or developmental interests e.g. the decision not to go to school vs. the decision whether or
not to wear skinny jeans.
Should children have all the rights of adults?

Children should not have all the rights of adults – so that they can have greater autonomy as adults – but it is limited
to a situation in which they can have such rights if it does not cause serious harm to their basic and developmental
interests.
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The law should promote a child’s welfare by encouraging dynamic self-determinism. “The process is dynamic
because it appreciates that the optimal course for a child cannot always be mapped out at the time of decision and
may need to be revised as the child grows up. It involves self-determinism because the child itself is given scope to
influence the outcome.”

“In truth, childhood is short and it is unrealistic to argue that a child who is protected throughout from responsibility
and from participation in important decisions regarding his or her upbringing will become a confident teenager or
indeed a responsible citizen.”

“In this respect, contemporary parents must accept that an important parental task is to provide children with the
conditions they need to develop into fully autonomous adults. In particular, parents are required to promote their
children’s capacity to reach all important decisions about their future for themselves.”

Despite a changing approach to the status of childhood, an admission of the need for children to develop their
decision-making capacities does not lead to an admission that they have a right to autonomy. Furthermore, there is
an obvious danger in admitting that children do have such a right; this is that they may not choose what adults
consider is best for them. Many theorists are concerned with justifying paternalistic interventions to ensure that
children’s decisions do not cut them off from future opportunities. - Jane Fortin

What does the CRC say?

Childhood “not life’s waiting room”

“At the international level it has been repeatedly emphasized that childhood should not be ‘life’s waiting room’ but it should be ‘life
itself’. That is why the legal situation, in which the child on the eve of his or her eighteenth birthday is almost ‘rightless’ and the next
day with full rights cannot be accepted any longer. It is therefore necessary to create conditions for differentiated and gradual
emancipation of children in all areas of the
day-to-day life. If, however, society’s understanding of the status of the child does not change towards viewing the child as the entity of
law, the legislative changes might not help…” (Slovakia IR, para. 240)

Article 5

States Parties shall respect the responsibilities, rights and duties of parents or,
where applicable, the members of the extended family or community as provided
for by local custom, legal guardians or other persons legally responsible for the
child, to provide, in a manner consistent with the evolving capacities of the
child, appropriate direction and guidance in the exercise by the child of the
rights recognized in the present Convention.

Article 5, together with Article 18 in particular, provides a framework for the relationship between the child, his or
her parents and family, and the State. The article provides the Convention on the Rights of the Child with a flexible
definition of “family” and introduces to the Convention two vital concepts: parental “responsibilities” and the
“evolving capacities” of the child. The article also signals clearly that the Convention regards the child as the active
subject of rights, emphasizing the exercise “by the child” of his or her right.

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 Does the CRC pit children against their parents?

This is the answer given by the CRC Implementation Handbook. Do you agree?

In no sense is the Convention “anti-family”, neither does it pit children against their parents. On the contrary, the
preamble upholds the family as “the fundamental group of society and the natural environment for the growth and
well-being of all its members and particularly children”. Several articles emphasize the primary responsibility of
parents and place strict limits on State intervention and any separation of children from their parents (Articles 3(2),
7, 9, 10, 18); one of the aims for education is the development of respect for the child’s parents (Article 29).

Meaning of ‘Evolving Capacity’

Using the concept of “evolving capacities” has avoided the need for the Convention to set arbitrary age limits or
definitions of maturity tied to particular issues. The “evolving capacities” of the child is one of the Convention’s key
concepts – an acknowledgement that children’s development towards independent adulthood must be respected and
promoted throughout childhood. It is linked to Article 12’s requirement that the views of children should be given
“due weight in accordance with the age and maturity of the child”. The concept is repeated in Article 14: parents and
legal guardians may provide direction to the child, in relation to the child’s right to freedom of thought, conscience
and religion, in a manner consistent with his or her evolving capacities.

The Manual on Human Rights Reporting, 1997, links the concept of “evolving capacities” with Articles 12 and 13.
Parents are expected to provide appropriate direction and guidance to the child: “But in this endeavour they are
required to act in a manner that takes into consideration the evolving capacities of the child, his or her age and
maturity. In the light of Article 12, a system of shared, positive and responsible dialogue should thus prevail. In fact,
parents are particularly well placed to build the capacity of children to intervene in a growing manner in the different
stages of decision, to prepare them for responsible life in a free society, informing them, giving the necessary
guidance and direction, while assuring children the right to express views freely and to give those views due weight
(Articles12 and 13). Children’s opinions will thus be taken into account, although not necessarily endorsed, and
children will be given the possibility of understanding the reasons for a different decision being taken. Children will
become active partners, with appropriate skills to participate, rather than a passive reflection of parents’ wishes.”
(Manual, p. 446) Article 1 defines “child” as every human being below the age of 18 or below the age of majority if
achieved earlier (see page 1). At the same time Article 5 emphasizes the path to maturity, which must come from
increasing exercise of autonomy. Much of the information sought by the Committee in its Guidelines for Periodic
Reports in relation to article 1 (definition of the child) on any “minimum legal ages” set for various purposes relates
to the recognition of the child’s growing autonomy and independent exercise of rights: for example legal and
medical counselling without parental consent; medical treatment or surgery without parental consent; sexual
consent; giving testimony in court; participating in administrative and judicial proceedings, creating and joining
associations and so on (see Article 1,page 5, for further discussion).

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 Definition of the Child
United Nations Convention on the Rights of the Child

Article 1

For the purposes of the present Convention, a child means every human being
below the age of 18 years unless, under the law applicable to the child, majority
is attained earlier.

Setting an age for the acquisition of certain rights or for the loss of certain protections is a complex matter. It
balances the concept of the child as a subject of rights whose evolving capacities must be respected (acknowledged
in Articles 5 and 14) with the concept of the State’s obligation to provide special protection. On some issues, the
Convention sets a clear line: no capital punishment or life imprisonment without the possibility of release for those
under the age of 18 (Article 37); no recruitment into the armed forces or direct participation in hostilities for those
under the age of 15 (Article 38 and see Optional Protocol on the involvement of children in armed conflict, page
641). On other issues, States are required to set minimum ages: for employment (Article 32) and for criminal
responsibility (Article 40). The requirement to make primary education compulsory also implies setting an age
(Article 28).

The Committee on the Rights of the Child has emphasized that, when States define minimum ages in legislation,
they must do so in the context of the basic principles within the Convention, in particular the principle of non-
discrimination (Article 2, for example challenging different marriage ages for boys and girls), as well as the
principles of best interests of the child (Article 3) and the right to life and maximum survival and development
(Article 6). There must be respect for the child’s “evolving capacities” (Article 5). And there should be consistency,
for example, in the ages set for the completion of compulsory education and for admission to employment.

In many countries, children acquire certain rights of self-determination well before the age of majority; they often
gain full adult rights on marriage, which in some States is permitted at the age of 14 or 15 (the Committee strongly
criticizes this, see page 10). In a few countries the concept of “evolving capacities” is further reflected by a general
provision in legislation that once children acquire sufficient maturity or understanding, they may make decisions for
themselves when there is no specific limitation on doing so set down in the law. The focus of Article 5 on “evolving
capacities” is not only about children’s growing autonomy in relation to parents. It also relates to the child’s process
of maturation (Articles 6, 27 and 29) and parents’ responsibility not to demand or expect from the child anything
that is inappropriate to the child’s developmental state. The Committee has underlined that there must be no
discrimination – for example on grounds of gender – in recognition of maturity in States’ legislation.

What is the minimum legal age defined by the national legislation for the following?

1. Legal and medical counselling without parental consent;

2. Medical treatment or surgery without parental consent;
3. End of compulsory education;
4. Admission to employment or work, including hazardous, part-time and full-timework;
5. Marriage;
6. Sexual consent;
7. Voluntary enlistment in the armed forces;
8. Conscription into the armed forces;
9. Participation in hostilities;
10. Criminal responsibility;
11. Deprivation of liberty, including by arrest, detention and imprisonment, inter alia in the areas of
administration of justice, asylum-seeking and placement of children in welfare and health institutions;
12. Capital punishment and life imprisonment;
13. Giving testimony in court, in civil and criminal cases;
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 14. Lodging complaints and seeking redress before a court or other relevant authority without parental consent;
15. Participating in administrative and judicial proceedings affecting the child;
16. Giving consent to change of identity, including change of name, modification of family relations, adoption,
guardianship;
17. Having access to information concerning the biological family;
18. Legal capacity to inherit, to conduct property transactions;
19. To create and join associations;
20. Choosing a religion or attending religious school teaching;
21. Consumption of alcohol and other controlled substances.

QUESTION

“Setting an age for the acquisition of certain rights or for the loss of certain protections is a complex matter.”

Discuss with reference to at least five minimum or maximum age set by legislation in the Commonwealth
Caribbean. Include in your discussion the justification for the use of the biological criterion of puberty to set
different ages of maturity for boys and girls and whether this is contrary to the provisions of the Convention and
constitute a form of gender-based discrimination.

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 INCORPORATION OF THE CRC INTO COMMONWEALTH CARIBBEAN STATES

Generally

D. Ramsaran, ‘Globalisation and Children’s Rights in the English Speaking Caribbean.’ pp. 171 et seq. in Barrow,
C. (ed) Children Rights: Caribbean Realities (Ian Randle Publishers) 2002 [Law Library Issue Desk]

Statute Law

L Jackson, Legal Protection of HIV/Orphans and other Vulnerable Children in Guyana (World Bank Report) 2006
Jamaican Children: Twenty Years after the Convention on the Rights of the Child (UNICEF)
http://www.unicef.org/jamaica/CRC20_in_Jamaica.pdf

Case law

While the convention has been ratified by all states of the Commonwealth Caribbean, because of the dualist model,
unless such a treaty is directly incorporated into local law it has no direct legal effect, but it can have both
procedural and substantive effects on rights in the domestic law through interpretation.

*Attorney General of Barbados v. Joseph & Boyce (2006) 69 WIR 104 [see generally for an authoritative
discussion of the interpretative effect of international treaties that leads to substantive rights]

*Minister of Home Affairs v. Fisher (1979) 44 WIR 107(constitutional interpretation – meaning of child –
precedes CRC – definition includes child born out of wedlock) Privy Council

Lord Wilberforce: When therefore it becomes necessary to interpret 'the subsequent provisions
of' Chapter I (in this case section 11) the question must inevitably be asked whether the appellants'
premise (fundamental to their argument) that these provisions are to be construed in the manner
and according to the rules which apply to Acts of Parliament, is sound. In their lordships' view
there are two possible answers to this. The first would be to say that, recognising the status of the
Constitution as, in effect, an Act of Parliament, there is room for interpreting it with less rigidity,
and greater generosity, than other Acts, such as those which are concerned with property, or
succession, or citizenship. On the particular question this would require the court to accept as a
starting point the general presumption that 'child' means 'legitimate child' but to recognise that this
presumption may be more easily displaced. The second would be more radical: it would be to treat
a constitutional instrument such as this as sui generis, calling for principles of interpretation of its
own, suitable to its character as already described, without necessary acceptance of all the
presumptions that are relevant to legislation of private law.

It is possible that, as regards the question now for decision, either method would lead to the same
result. But their lordships prefer the second. This is in no way to say that there are no rules of law
which should apply to the interpretation of a Constitution. A Constitution is a legal instrument
giving rise, amongst other things, to individual rights capable of enforcement in a court of law.
Respect must be paid to the language which has been used and to the traditions and usages which
have given meaning to that language. It is quite consistent with this, and with the recognition that
rules of interpretation may apply, to take as a point of departure for the process of interpretation a
recognition of the character and origin of the instrument, and to be guided by the principle of
giving full recognition and effect to those fundamental rights and freedoms with a statement of
which the Constitution commences. In their lordships' opinion this must mean approaching the
question what is meant by 'child' with an open mind. Prima facie, the stated rights and freedoms
are those of 'every person in Bermuda'. This generality underlies the whole of Chapter I which, by
contrast with the Bermuda Immigration and Protection Act 1956, contains no reference to

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legitimacy, or illegitimacy, anywhere in its provisions. When one is considering the permissible
limitations upon those rights in the public interest, the right question to ask is whether there is any
reason to suppose that in this context, exceptionally, matters of birth, in the particular society of
which Bermuda consists, are regarded as relevant.

Section 11 opens with a general declaration of the right of freedom of movement, including that of
residence, entry and immunity from expulsion. These rights may be limited by section 11(2)(d) in
the case of persons 'not [belonging] to Bermuda'; a test not identical with that of citizenship, buta
social test. Then, among those deemed to belong to Bermuda are (section 11(5)) a person who –

'(a) possesses Bermudian status; … (c) is the wife of [such a person]; or (d) is under the age of
eighteen years and is the child, step-child or child adopted in a manner recognised by law of a
person to whom any of the foregoing paragraphs of this subsection applies.'

In their lordships' opinion, paragraph (d) in its context amounts to a clear recognition of the unity
of the family as a group and acceptance of the principle that young children should not be
separated from a group which as a whole belongs to Bermuda. This would be fully in line with
article 8 of the European Convention on Human Rights and Fundamental Freedoms (respect for
family life), decisions on which have recognised the family unit and the right to protection of
illegitimate children. Moreover the draftsman of the Constitution must have had in mind (a) the
United Nations' Declaration of the Rights of the Child adopted by Resolution 1386 (xiv) on 29
November 1959, which contains the words in principle 6 –

'[the child] shall, wherever possible, grow up in the care and under the responsibility of his
parents … a child of tender years shall not, save in exceptional circumstances, be separated from
his mother.'

and (b) article 24 of the International Covenant on Civil and Political Rights 1966, which
guarantees protection to every child without any discrimination as to birth. Although these
instruments at the date of the Constitution had no legal force, they can certainly not be disregarded
as influences upon legislative policy.

Their lordships consider that the force of these arguments, based purely upon the Constitution
itself, is such as to compel the conclusion that the term 'child' bears an unrestricted meaning. In
theory, the Constitution might contain express words forcing a contrary conclusion, although
given the manner in which Constitutions of this style were enacted and adopted, the possibility
seems remote. But, in fact, their lordships consider it most unlikely that the draftsman being
aware, as he must have been, of the provisions of the Bermuda Immigration and Protection Act
1956, could have intended a limitation of the word 'child' to legitimate children. In the first place,
if he had intended this limitation, he must surely, following the example of the Act of 1956, have
felt it necessary to spell it out. In the second place the concept of 'belonging' of itself suggests the
inclusion of a wider class; yet if the appellants are right, those described under section 11(5)(d) of
the Constitution would largely coincide with persons having, or deemed to have, Bermudian
status. Thirdly, under section 100 of the Act of 1956, these illegitimate children would enjoy
immunity from deportation until they were twenty-one. It seems most unlikely that such children
should not be treated as 'belonging to Bermuda' or that a stricter test (in respect of their right to
freedom of movement) should be imposed on such children under section 11 of the Constitution
than is imposed under the earlier Act. Their lordships fully agree with the majority of the Court of
Appeal in regarding these points as significant although they prefer to base their judgment on
wider grounds.

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 Their lordships are therefore of opinion that the judgments of the majority of the Court of Appeal
are right and accordingly they will humbly advise Her Majesty that the appeal be dismissed. The
appellants must pay the respondents' costs of the appeal.

*Bowen and Jones v AG (Belize) BZ 2010 SC 61 (sentencing of juveniles, incorporation of CRC into domestic law
of Belize)

What this case is about?

20. This case is about the compatibility with the Constitution of Belize and Article 37(a) of the
Convention on the Rights of the Child of the life imprisonment sentences imposed on the
claimants on their conviction for the offence of murder. Although it may sound like an appeal
against their sentences, I must make it clear that I do not sit as an appellate court for the purposes
of this case, and I certainly do not have the power to review by way of an appeal, a sentence
substituted by the Court of Appeal. The claimants have however pitched their case as one for
redress under section 20 of the Constitution that the sentences of mandatory life imprisonment
imposed on them transgress certain of the provisions of the Belize Constitution protecting
fundamental rights and freedoms contained in its Part II.

27. The nub of the claimants' case, therefore, is that because they were minors or juveniles at the
time of their offences, they should not have received the life sentences imposed upon them and
that therefore their sentences are not only not in conformity with the Constitution of Belize but
also in breach of international Human Rights law, in particular, the United Nations Convention
on the Rights of the Child.
28. In particular, the claimants contend that section 146(2) of the Criminal Procedure Act, Chapter
91 of the Laws of Belize, Revised Edition 2003, is repugnant to the Constitution of Belize and
incompatible with Article 37(a) of the UN Convention on the Rights of the Child (CRC) given
the definition of a child in Article 1 of the CRC. And that this is more so as Belize was among the
first member states of the UN, to ratify the CRC on 2nd September 1990 and enacted provisions in
the Families and Children Act – Chapter 173 of the Laws of Belize, Revised Edition 2003 relating
to the CRC: see for example, section 3 and the related First Schedule of the Act and section 149
on promoting, monitoring and evaluating the implementation of the CRC.

41. It is also contended for the defendant in relation to Article 37(a) of the CRC that it is not
superior to section 146(2) of the Indictable Procedure Act.
42. The brunt of the submission on behalf of the defendant in this regard is that the CRC which
Belize has ratified and which is prayed in aid of the claimants' case, is not, in any event, applicable
in Belize's domestic legal system absent its express incorporation by an Act of the Legislature into
Belizean law. A subsidiary strand of this argument is that The Guiding Principles in the
Implementation of the Family and Children's Act stipulated in section 3 of the Act do not apply in
the criminal justice system as they are only intended for the implementation of the Act. The
argument is advanced therefore, that the CRC is an unincorporated treaty and therefore not
directly applicable in Belize.
43. Finally, it was argued for the defendant section 146(2) of the Indictable Procedure Act was an
amendment that came after the CRC and it should therefore prevail over the latter in case of any
inconsistency between the two.
44. Article 37(a) of the Convention on the Rights of the Child
The CRC is of course, a multilateral treaty concluded under the aegis of the United Nations. It
represents today the most widely-acceded to treaty. See generally Geraldine Van Bueren, The
International Law on the Rights of the Child (1998, Save the Children and Martin Nihoff
Publishers).
45. Belize, as I have noted at para. 27 above, ratified the CRC in 1990, and this was not long after
its conclusion in 1989.
46. Article 37(a) of the CRC provides as follows:

12
"Article 37 States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or
punishment. Neither capital punishment nor life imprisonment without possibility of release shall
be imposed for offences committed by persons below eighteen years of age." (Emphasis added).
47. The CRC in Article 1 defines who a child is in the following terms:

"Article 1
For the purposes of the present Convention a child means every human being below the age of
eighteen years unless under the law applicable to the child, majority is attained earlier."

48. Section 2 of the Family and Children's Act provides a coterminous definition of "a child" to
mean, "unless provided otherwise in any law, a person below the age of eighteen years."
49. Despite the initial demurer on behalf of the defendant as to the age of the claimants at the
times of their commission of the offence of murder for which they were convicted (see para. 10
above), it is, I think, fair to say that in the course of the hearing of the claim it became common
ground that they were juveniles or below eighteen years of age at the material time: the first
claimant was seventeen years old in 1993 when he committed the offence; and the second
claimant was sixteen years plus.
50. I have briefly recounted in paras. 17, 18 and 19 of this judgment, how both claimants had the
sentences of life imprisonment imposed on them. These are the subject of the instant claim in
which the claimants say that by reason of those sentences they have been subjected to inhuman
treatment and punishment in breach of their constitutional rights under section 7.

97. B. I now turn to the status of the Convention on the Rights of the Child (CRC), in particular,
its Article 37(a) in the context of sentencing juveniles convicted for murder.
98. This is the other plank in the claimants' platform in this case as they seek to impugn the life
sentences imposed on them.
99. Belize ratified the CRC in 1990 and enacted the Families and Children Act in 1998. It is
therefore urged on behalf of the claimants that the life imprisonment sentences imposed on them
when they were juveniles were contrary to the CRC itself and hence not in keeping with some of
the provisions of the Families and Children Act.
100. In particular, article 37(a) of the CRC is prayed in aid for the claimants. I have produced the
text of this Article at para. 45 of this judgment. It is also contended for the claimants that some of
the provisions of the Families and Children Act resonate with the provisions of the CRC and that
in fact the latter has been incorporated into the laws of Belize.
101. It is therefore submitted for the claimants that the sentences of life imprisonment imposed on
them as a result of their convictions, were contrary to Article 37(a) of the CRC and that
international human rights instruments to which Belize has subscribed should inform its domestic
laws where applicable.
102. Ms. Moore SC for the claimants was careful to point out that it was not being advanced for
the claimants that all mandatory life or other mandatory sentences are unconstitutional. The
claimants' case, she submitted, is that the life imprisonment sentences imposed on them are
unconstitutional because they were minors at the time of the commission of the offence and
because by section 146(2) the sentencing court was deprived of the ability or opportunity to
consider anything else, given the age of the claimants.
103. Such sentences as were imposed on the claimants, she submitted, ignore the provisions of the
CRC, in particular its Article 37, and they are repugnant to the evolving standards and aims of the
juvenile justice system. Rehabilitation, she further submitted, should be a feature of any fair and
progressive: juvenile justice system. But this would not be possible, and is in fact precluded in a
system that directs a mandatory life imprisonment for juveniles.
104. Ms. Banner for the defendant, however, stoutly resisted the applicability of the CRC and its
provisions called in aid for the claimants in this case.
105. First, she submitted that the enacted law (section 146(2)) of the Indictable Procedure Act,
directing life imprisonment for juvenile murderers came after Belize ratified the CRC. Therefore

13
as it represents the view of the Legislature on this issue it must prevail over the provisions of the
CRC.
Yes, section 146(2) was enacted to replace the old section 151(2) providing for detention of
convicted juveniles during Her Majesty's Pleasure, in 1998, some eight years after Belize had
ratified the CRC.
106. But with respect, the issue is not as simplistic as that. In my view, a court must always be
astute to recognize and if possible give effect to international human rights obligations contained
in treaties or conventions the state has subscribed to. The accepted and proper way to nullify the
operation or effect of such instruments is, I think, by denunciation of or reservation or formal
withdrawal from participation in such instruments by the state concerned. Simply to say, as Ms.
Banner contends, that a later state legislation that is inconsistent with provisions in international
human rights treaties means that those provisions are inapplicable is, I find, untenable; and in the
circumstances, cannot avail the defendant. By signing and ratifying an international treaty,
agreement or convention, a state assumes obligations and later domestic legislation inconsistent
with a treaty obligation does not justify the non-observance of that obligation.
107. This brings me to the more substantial point pressed for the defendant. This relates to the
applicability of the First Schedule of the Families and Children Act, in particular, para. 4 of that
Schedule. This raises the issue of the status of the CRC in the domestic law of Belize: is it
incorporated or not, even though ratified?
108. Section 3 of the Families and Children Act provides in terms:

"3. The principles in regard to children's rights set out in the First Schedule to this Act shall be
the guiding principles in the making of any decision affecting a child."

109. The First Schedule sets out the Guiding Principles in The Implementation of The Act.
Paragraph 4 of the Schedule sets out the rights a child shall have and sub paragraph (c) states as
follows:

(a) ……
(b) ……
(c) to exercise, in addition to all the rights stated in this Schedule and the Act, all the rights set out
in the UN Convention on the Rights of the Child, with the appropriate modifications to suit the
circumstances in Belize, that are not specifically mentioned in the Act or in this Schedule."
(Emphasis added).

110. I am not convinced that the phrase "with the appropriate modifications to suit the
circumstances of Belize" claws back any of the rights set out in the CRC so as to negate the
obligation to ensure that no child is sentenced to life imprisonment without possibility of release. I
am of the considered view after having carefully perused the CRC itself and the provisions of the
Families and Children Act, that the latter has by reason of the express reference theory made the
former applicable in Belize. I am also satisfied that from the several provisions of the Families and
Children Act, there is sufficient evidential nexus between this Act and the CRC to warrant the
conclusion that the letter was intended by the Legislature to have direct effect in Belize. This
conclusion, I find, is supported by, for example, the provisions of sections 148 and 149 of the
Families and Children Act.
Section 148 establishes the National Committee for Families and Children. But more importantly,
the functions and terms of reference of the National Committee are stated in section 149; among
these are as stated in paragraph (a):

"(a) promoting monitoring and evaluating the implementation of the Convention on the Rights of
the Child and ensuring that the Government meets its national and international oblations, as a
party to the Convention." (Emphasis added).

111. A clearer case of incorporation of an international treaty by express reference can hardly be

14
imagined. See generally Shaheed Fatima, Using International Law in Domestic Courts (2005, Hart
Publishing, Oxford and Portland, Oregon; especially Chapter 9 on ‘Unincorporated treaties and
Legislation.’
112. I am satisfied that the CRC does apply in Belize and that the First Schedule of the Families
and Children Act can operate depending on the issue, even in the sphere of the criminal justice
system as well.
113. I am accordingly, satisfied that since Belize's accession to the CRC in 1990, one of the
Convention rights available to a child caught up in the web of the criminal justice system is the
obligation incumbent on Belize, as a state party to the Convention as provided in Article 37(a)
which states:

"States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or
punishment. Neither capital punishment nor life imprisonment without possibility of release shall
be imposed for offences committed by persons below eighteen years." (Emphasis added).

114. It should be observed that the obligation incumbent on Belize under this Article is to ensure
that neither capital punishment nor life imprisonment without possibility of release is imposed for
offences committed by juveniles. That is to say persons below eighteen years.
115. This obligation I find has subsisted since 1990 when Belize ratified the CRC and later
incorporated it into its laws. It subsisted in April 1996 when the life imprisonment without
possibility of release was imposed upon the claimant Anthony Bowen. The obligation still
subsisted as well in the case of David Jones when he was also sentenced to life imprisonment in
October 2001 without possibility of release. The obligation I find subsisted even in 1998 when the
Legislature effected a change to the Indictable Procedure Act allowing, in section 146(2) thereof
for the imposition of life imprisonment upon juveniles convicted of murder. This provision, with
respect, ignored Belize's subsisting obligation under Article 37(a) of the CRC. And this, as I have
concluded in para. 105 of this judgment is no warrant for the contention that section 146(2) trumps
Article 37(a). This conclusion finds support in section 65(b) of the Interpretation Act, which
provides:

"65. The following shall be included among the principles to be applied in the interpretation of
Acts where more than one construction of the provisions in question is reasonably possible,
namely:

(a) …….
(b) that a construction which is consistent with the international obligations of the Government of
Belize is to be preferred to a construction which is not,.
(c) ……

116. I am therefore satisfied that an interpretation that finds in favour of Article 37(a) is,
undoubtedly, preferable as it would be clearly in keeping with Belize's obligations under the CRC
in relation to the imposition of sentences of life imprisonment on juveniles. As it stands, I am
convinced that section 146(2) of the Indictable Procedure Act seriously derogates from Belize's
obligation regarding sentencing juveniles.

117. Life imprisonment and possibility of release for juveniles convicted for murder?
It is the imposition of life imprisonment on juveniles without possibility of release that Belize had
undertaken, since 1990, by its accession and ratification of the CRC, to ensure never happens.
And it is this spectre or reality of life imprisonment without possibility of release that has
animated the claimants to launch the present proceedings.
118. From the terms of their sentences, life imprisonment, because of their conviction for murder
and an examination of the relevant Prison Rules, I find the complaint of the claimants not without
justification.
119. Belize only introduced parole by the side-wind of subsidiary legislation in 2006: The Prison
15
Rules, 2006 in Part VI created the Parole System, This system now allows for the release of
certain categories of prisoners on parole. The system administered by the Parole Board allows for
the release of these prisoners from imprisonment before the full sentence of their prison term has
been served. The essence of parole is the release from prison, before completion of the sentence,
invariably on condition that the prisoner abides by certain rules during the balance of the sentence
he has been imprisoned for.
But under the Prison Rules, persons convicted for murder including of course, juveniles, are
expressly excluded from eligibility for parole: Rule 267(8)(a) including the recent amendment to
the Rules by Statutory Instrument No. 32 of 2010.
120. Therefore for the claimants, their life imprisonment means literally imprisonment for the rest
of their natural lives without any possibility of release. They cannot avail themselves of the
privilege of the parole system, however well-behaved they might be in prison. Their conviction for
murder expressly excludes this.
121. There is, of course, the possibility of the claimants seeking clemency, through the Belize
Advisory Council, of the Governor-General, as provided in section 52 of the Belize Constitution.
Therefore, the possibility exists that, though sentenced to life imprisonment, they could, by
exercise of the prerogative of mercy, be granted a pardon, respite, a substitution of a less severe
form of punishment, or a remission of the whole or any part of the sentences of life imprisonment
imposed on them.
122. This is a possibility and it is unarguable that the Governor-General has over the years, no
doubt charily, on the advice of the Belize Advisory Council, granted his munificence by the
exercise of the prerogative of mercy in favour of some prisoners.
123. I find however, with respect, that this possibility of the prerogative of mercy is no answer to
the unconstitutionality of the life sentences imposed on the claimants.
124. I am fortified in this view by the statement of the Privy Council in Reyes (supra) on the
availability of the exercise of mercy by the Governor-General in the context of a challenge to the
constitutionality of a particular form of sentence. (On that case mandatory death fence for the
offence of murder by shooting). I am, with respect, like the Board in Reyes mindful of the
constitutional provisions governing the exercise of mercy by the Governor-General as I have
briefly stated in para.120 above. But as the Board stated at para. 44 of its judgment in Reyes:

"It is plain that the Advisory Council has a most important function to perform. But it is not a
sentencing function and the Advisory Council is not an independent and impartial court within the
meaning of section 6(2) of the constitution. Mercy, in its first meaning given by the Oxford
English Dictionary, means forbearance and compassion shown by one person to another who is in
his power and who has no claim to receive kindness. Both in language and literature mercy and
justice are contrasted. The administration of justice involves the determination of what punishment
a transgressor deserves; the fixing of the appropriate sentence for the crime. The grant of mercy
involves the determination that a transgressor need not suffer the punishment he deserves, that the
appropriate sentence may for some reason be remitted. The former is a judicial, the latter an
executive, responsibility. Appropriately, therefore, the provisions governing the Advisory Council
appear in Part V of the constitution, dealing with the executive. It has been repeatedly held that not
only determination of guilt but also determination of the appropriate measure of punishment are
judicial not executive functions. Such was the effect of the decisions in Hinds v. The Queen [1977]
A.C. 195 at 226(D); R v. Mollison (No. 2) ... 29 May 2000, Appeal No. 61/97, 29 May 2000);
Nicholas v. The Queen [1998] 193 C.L.R. 173, paras.16, 68, 100, 112. The opportunity to seek
mercy from a body such as the Advisory Council cannot cure a constitutional defect in the
sentencing process: see Edwards v. Bahamas, above, paras. 167-168; Downer and Tracy v.
Jamaica, above, paras.224-226; Baptiste v. Grenada, above, paras.117-119."

125. I am therefore of the considered view that the fact that some day, however distant, the
prerogative of mercy in one of its variant forms, may be exercised in the claimants' favour, does
now answer their challenge that the mandatory sentences of life imprisonment imposed on them in

16
 the circumstances, offend section 7 of the Constitution.

126. Conclusion

I am ineluctably, led to conclude from my analysis in the foregoing paragraphs of this judgment,
that the claimants have made good their claim. That is to say, the sentences of mandatory life
imprisonment without prospect of release imposed upon them for the offence of murder
committed when they were juveniles, are not sustainable in the circumstances, in the light of the
provisions of section 7 of the Belize Constitution and are not in keeping with the obligations of
Belize under the CRC, in particular Article 37(a) of the Convention.

*Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh [1995] 183 C.L.R. 273(The rights of
TEOH's children ought to have been a primary consideration in determining his application for resident status
under the CRC which although not incorporated in the domestic law of Australia, its ratification was enough to
create a basis for legitimate expectation.

Applied in a series of Caribbean cases by the Privy Council, CCJ and Courts of Appeal (see Thomas v. Baptiste
(1998) 53 WIR387; Fisher v. Minister of Public Safety & Immigration (No. 2) (1998) 53 WIR 27, [2000] 1 AC 434;
Naidike v. AG [2005] 1 AC 538, (2004) 65 WIR 387; AG v. Joseph & Boyce (2006) WIR 104)

*F v. M BB 2009 CA 6; (2009) 74 WIR 64 (status of children and paternity)

“[37] A child's right to know the truth about his parents is acknowledged in the United Nations
Convention on the Rights of the Child, 1989, which was ratified by Barbados on 9 October 1990
and entered into force on 8 November 1990. In particular Article 7 provides that:

"1. The child shall be registered immediately after birth and shall have the right from birth to a
name, the right to acquire a nationality and, as far as possible, the right to know and be cared for
by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national
law and their obligations under the relevant international instruments in this field, in particular
where the child would otherwise be stateless." (Emphasis added.)

*Grant v. Grant LC 2002 HC 30 custody proceedings)

[26] While there are no statutes directing the court to give effect to the wishes and feelings of a
child, the courts, over the last few years, have become increasingly aware of the importance of
listening to the view of older children and taking into account what children say, not necessarily
agreeing with what they want nor, indeed, doing what they want but paying proper respect to older
children who are at an age and have the maturity to make their minds up as to what they think is
best for them, bearing in mind that older children very often have an appreciation of their own
situation which is worthy of consideration by, and the respect of, the adults, and particularly the
courts; see Re P (A Minor) (Education) [1992] 1 F.L.R. 316. This enjoinder to consider the child's
wishes and feelings is reflective on the international obligation under the UN Convention on the
Rights of the Child 1989 which Saint Lucia has ratified.

*Maynard v. R BB 2010 CA 8(statutory rape of 10 year old, by stepfather – 18-year sentence, whether excessive)

In Hess and Nguyen, McLachlin, J. (now CJC) explained the objective of the offence of statutory
rape and the importance of punishment for its contravention in the following paragraphs of her
judgment:
17
 [56] "100....It is not an exaggeration to say that the offence of "statutory rape", as it is commonly
referred to, is embedded in our social consciousness.
102. ...It has two aspects. The first is the protection of female children from the harms which may
result from premature sexual intercourse and pregnancy. The second is the protection of society
from the impact of the social problems which sexual intercourse with children may produce.
103. ...The protection of children from the evils of intercourse is multi-faceted and so obvious as
not to require formal demonstration. Children merit this protection for three primary reasons. The
first is the need to protect them from the consequences of pregnancies with which they are ill-
equipped to deal from the physical, emotional and economic point of view. The second is the need
to protect them from the grave physical and emotional harm which may result from sexual
intercourse at such an early age. The third is the need to protect them from exploitation by those
who might seek to use them for prostitution and related nefarious purposes.
104. Each of these reasons to protect against premature sexual intercourse is reflected in
corresponding social problems. Juvenile pregnancies adversely affect both family and society. It is
society which bears the cost of abortions, society which often pays for the care of infant and
mother. The physical and emotional trauma inflicted on children through premature sexual
intercourse is reflected in increased medical and social costs and decreased productivity. Finally,
juvenile prostitution is a notorious problem in many of our larger cities."

[57] The above approach is in keeping with the state's obligation under the UN Convention on
the Rights of the Child, 1989, which Barbados ratified on 9 October 1990 and came into force on
8 November 1990. Article 34 provides that:

"State Parties undertake to protect the child from all forms of sexual exploitation and sexual
abuse."

The Sexual Offences Act, Cap. 154, section 4(1) provides the necessary legislative protection for
the vulnerable and the punishment for adults who abuse young children. It is for the courts to
properly enforce the seriousness of the offence by imposing appropriate punishment.

*Naidike et. al. v. AG (T&T) TT 2004 PC 11; (2004) 64 WIR 372; [2005] 1 AC 538 (application of CRC to
deportation of parent cases and the effect on the child – suit brought on child’s behalf as a party)

Baroness Hale:

68. I wish, however, to say a little more about Faith's claim. It appears that this was not fully
argued in the Court of Appeal but it is addressed in some detail in the judgment of Nelson JA and
we have heard argument upon it. In my view, it is important that the rights and interests of
children are taken seriously by all countries which are party to the United Nations Convention on
the Rights of the Child (1989) (Cm 1976). It is all too easy to lose sight of those rights and
interests in proceedings which are mainly concerned with the rights and interests of adults.

69. Faith was born in Trinidad on 14 September 1993 and is therefore a citizen of Trinidad and
Tobago. At the time of her father's arrest on 28 November 1995 she was only two years and two
months old. Her father had been responsible for her care since November 1994 as her mother had
been out of the country. She was in the car with her father and two other adults when he was
arrested. The woman left the scene. The trial judge accepted the evidence of Woman Police
Constable Edwards that the other man was unable or unwilling to take care of the child. The father
wanted to take her with him into custody but was told that this was not possible. Because there
was no one else to look after her, WPC Edwards took the child to a convalescent home. The home
would not keep her for more than a week without a court order. Accordingly, on 12 December
1995 the officer obtained an order under section 11 of the Children Act for the child's detention in
a place of safety, which was renewed on 17 January 1996. The child was reunited with her father
on 6 February 1996, the day after his release from custody, and has lived with him ever since.
18
70. As Lord Brown of Eaton-under-Heywood states in para 62, it is not now argued that Faith's
detention in the convalescent home infringed her own right under section 4(a) of the Constitution
not to be deprived of her liberty without due process. The crucial right claimed on her behalf is her
right under section 4(c) of the Constitution, as a citizen of Trinidad and Tobago, to respect for her
private and family life. It is argued that the minister was bound to take her rights into account
before making the order to deport her father. (Indeed, the same argument would apply to the
decision to refuse him a work permit which preceded the deportation decision.) It is also argued
that the unlawful arrest and detention of her father in her presence infringed her right to respect for
family life.

71. The first point can be put in more than one way. Trinidad and Tobago is party to the 1989
United Nations Convention on the Rights of the Child. Article 3(1) of the Convention requires
that:

"In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration."

72. The Convention itself has not been incorporated into the domestic law of Trinidad and
Tobago, although its spirit is reflected in numerous specific laws relating to children. That is also
the position in Australia and Nelson JA in the Court of Appeal drew attention to the well known
decision of the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v.
Teoh (1995) 183 CLR 273. This concerned the decision to deport a Malaysian citizen who had
married an Australian and had three children by her but had also been convicted of some serious
drug dealing. The majority held that Australia's accession to the Convention gave rise to a
legitimate expectation that administrative decision-makers would act in accordance with the
Convention and treat the best interests of the children of a potential deportee as a primary
consideration. If the official proposed to act in a way which did not accord with that principle,
procedural fairness required him to give the children notice and an adequate opportunity of
presenting their case.

73. Gaudron J, at p. 304, reached the same conclusion but by a more direct route:

"What is significant is the status of the children as Australian citizens. Citizenship involves more
than obligations on the part of the individual to the community constituting the body politic of
which he or she is a member. It involves obligations on the part of the body politic to the
individual, especially if the individual is in a position of vulnerability. And there are particular
obligations to the child citizen in need of protection ... Quite apart from the Convention or its
ratification, any reasonable person who considered the matter would, in my view, assume that the
best interests of the child would be a primary consideration in all administrative decisions which
directly affect children as individuals and which have consequences for their future welfare.
Further, they would assume or expect that the interests of the child would be taken into account in
that way as a matter of course and without any need for the issue to be raised with the decision-
maker. They would make that assumption or have that expectation because of the special
vulnerability of children, particularly where the break-up of the family unit is, or may be,
involved, and because of their expectation that a civilised society would be alert to its
responsibilities to children who are, or may be, in need of protection."

74. Mr. Guthrie, for the Attorney General, quite rightly points out that the rights enshrined in the
United Nations Convention are not absolute rights. The children's interests may have to give way
to other more weighty considerations. Among these must be the right of the state of Trinidad and
Tobago to expel non-citizens who no longer have a right to remain. Article 9 of the Convention
draws a distinction between the compulsory separation of a child from her parents, which must be

19
subject to judicial review and necessary in her best interests, and the separation of a parent from
his child, for example by detention, imprisonment, exile, deportation or death. But the High Court
of Australia was concerned with the procedural fairness of the decision. The children's legitimate
expectations did not give rise to a right to have their interests treated as the paramount
consideration at all times. They did give rise to an expectation that if their interests were not to be
treated as a primary consideration in a matter directly affecting their welfare, then the family had
to be warned and given an opportunity to make representations.

75. If this is the position reached in Australia, where there is no constitutional guarantee of the
right to respect for private and family life, one would expect it also to be the position in Trinidad
and Tobago, where there is. "Respect" brings with it an expectation that these matters will at least
be taken into account by the decision-making state. It does not lead to the conclusion that no
foreign parent of a citizen child can ever be deported. Lucky JA was understandably concerned
that this could be subject to "convenient abuse". But there is a substantial body of case law under
the comparable provision in article 8 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, where the right of the state to exclude or deport non-citizens
conflicts with the right to respect for family life with citizen family members who have the right to
remain: see, for example the discussion by Lord Bingham of Cornhill in R (Ullah) v. Special
Adjudicator; R (Do) v. Immigration Appeal Tribunal [2004] 2 AC 323 and by myself in R
(Razgar) v. Secretary of State for the Home Department [2004] 2 AC 368. The decision-maker has
to balance the reason for the expulsion against the impact upon the other family members,
including any alternative means of preserving family ties. The reason for deporting may be
comparatively weak, while the impact on the rest of the family, either of being left behind or of
being forced to leave their own country, may be severe. On the other hand, the reason for
deporting may be very strong, or it may be entirely reasonable to expect the other family members
to leave with the person deported.

76. It may very well be that if the decision-maker had properly considered those matters in this
case he would nevertheless have refused to renew the work permit and ordered the deportation.
Faith was a very little girl at the time. Her family life was with her father. She cannot have
established strong roots in the wider community. She had little or no private life other than that
with her family. The benefits to her of being brought up in Trinidad and Tobago, rather than in
Nigeria or wherever else her father could go, might very well be insufficient to outweigh the
legitimate state interest in deporting him. Indeed, their deportation might have benefited her if it
led to her being reunited with her mother. On the other hand, on the material before the courts, it is
not entirely clear what was the state's interest in deporting Dr. Naidike, who was employed as a
doctor in the state's own hospitals and had not, it would appear, given serious cause to exclude
him.

77. It is clear, however, that no such balancing exercise was at any time conducted in this case.
The consequences for Faith had the deportation order been put into effect might have been serious.
However, as the deportation order was never put into effect and Faith has remained throughout
living with her father in the country of her birth, she has not in fact suffered any damage as a result
of the failure to take her interests into account. To that extent the point is academic in her case. At
this distance in time there would be little point in making a declaration that her rights under
section 4(c) had been infringed, even if we were all of that view.

78. The second issue is more difficult because the state's actions undoubtedly did have the effect
of depriving Faith of her family life with her father, who had sole parental responsibility for her in
Trinidad, for a period of over two months. The separation of a two-year-old child from her
primary carer for such a long period is a serious matter. Under article 8(2) of the European
Convention it could be justified, either in the interests of the child or in pursuit of some other
legitimate aim. The lawful arrest and detention of a parent is undoubtedly a legitimate aim.
Further, the requirements of law enforcement would ordinarily prevail over the interests of the
20
 child. Whatever may be the position where longer term decisions such as deportation or
imprisonment are concerned, the police cannot normally be expected to take account of the
interests of a child when making a lawful arrest. Even if, as here, the child is present and her needs
are obvious, the immediate need to enforce the law will take priority, provided that, as here,
proper arrangements are made for the child's care.

79. But in this case the Board has found that the arrest and subsequent detention were unlawful.
Further, this decision is not based upon the facts surrounding the arrest. It is based upon the lack
of any power to arrest and detain without a prior ministerial declaration as to Dr. Naidike's status.
An interference by a public authority with the right to respect for family life cannot be justified
under article 8(2) of the European Convention, unless it is "in accordance with the law". An
unlawful arrest is self-evidently not in accordance with the law. Does that then mean that the state
has interfered without justification with Faith's right to respect for family life?

80. As pointed out by Lord Brown of Eaton-under-Heywood (at para 64), it is accepted in this case
that the state's action was not aimed at Faith at all. Her separation from her father was the
incidental effect of the state's actions against him. The case law under article 8 of the European
Convention (referred to in the authorities cited above) indicates that the rights of one family
member may be infringed by action taken against another. But the action taken in those cases was
the long term decision to deport or expel in which all the relevant factors could be placed before
the authorities and taken into account. This cannot be done before a decision to arrest without
warrant. The police cannot be expected to discover what family members may be affected by the
decision, let alone the information needed to balance the respective interests. The damage to the
child's interests would be the same whether or not she was with her father when he was arrested:
in fact it might have been worse if she had not been there, because at least the police officers knew
that alternative arrangements had to be made for her. In those circumstances, I too would be
reluctant to hold that the short term arrest and detention of one family member, even if unlawful,
necessarily involved a lack of respect for the private and family life of another. The point must be
left for fuller consideration in another case. In this case, there is no evidence that Faith was in fact
harmed by these events, although I fully accept that a child may well be harmed by a traumatic
separation from a primary carer.

81. For those expanded reasons, therefore, I agree with the Board's decisions in the case of Faith
as well as of the adult parties.

Appeal allowed in part.

*ZH (Tanzania) v. Secretary of State for the Home Department [2011] 2 A.C. 166 [This case indicates how
influential Naidike has been to European Rights Jurisprudence dealing with extradition and deportation]

Lord Hope of Craighead DPSC, Baroness Hale of Richmond, Lord Brown of Eaton-under-
Heywood , Lord Mance , Lord Kerr of Tonaghmore JJSC

2010 Nov 9, 10; 2011 Feb 1

Immigration—Asylum—Removal—Claimant giving birth to children of British father while

asylum applications pending—Children having British citizenship through father—Father later
diagnosed with HIV—Claimant's asylum applications unsuccessful—Claimant resisting removal
on grounds of interference with Convention right to respect for private and family life—Weight to
be given to children's best interests when considering claimant's removal from United Kingdom—

21
 Importance to be attached to children's British citizenship— Human Rights Act 1998, Sch 1, Pt I
(c 42), art 8

The claimant, a citizen of Tanzania, arrived in the United Kingdom in 1995. Over the next ten
years she made three claims for asylum, two using false identities, a human rights claim and two
applications for leave to remain, all of which were unsuccessful. In 1997 she formed a relationship
with a British citizen and they had two children, born in 1998 and 2001, who both had British
citizenship through the father. In 2005 the claimant and the father separated. The children
continued to live with the claimant, although the father continued to have regular contact with
them. After the father was diagnosed as being HIV positive in 2007 the claimant made a fresh
claim under the Human Rights Act 1998, claiming that her removal from the United Kingdom
would constitute a disproportionate interference with her right to respect for her private and family
life, guaranteed by Article 8 of the Convention for the Protection of Human Rights and
Fundamental Freedoms. The Secretary of State rejected the claim and the claimant's appeal to the
Asylum and Immigration Tribunal was dismissed after a reconsideration. The Court of Appeal
dismissed the claimant's further appeal.

On the claimant's appeal—

Held , allowing the appeal, that international law placed a binding obligation upon public bodies,
including the immigration authorities and the Secretary of State, to discharge their functions
having regard to the need to safeguard and promote the welfare of children; that the obligation
applied not only to how children were looked after in the United Kingdom but also to decisions
made about asylum, deportation and removal from the United Kingdom; that any such decision
which was taken without having regard to the need to safeguard and promote the welfare of any
child involved would not be “in accordance with law” for the purposes of Article 8.2 of the
Convention; that, further, in all decisions directly or indirectly affecting a child's upbringing
national authorities were required to treat the best interests of the child as a primary consideration,
by identifying what those best interests required and then assessing whether the strength of any
other consideration, or the cumulative effect of other considerations, outweighed the child's best
interests; that although a child's British nationality was not a decisive factor it was nevertheless of
particular importance in assessing the child's best interests and was relevant in deciding whether it
would be reasonable to expect the child to live in another country; and that, having regard to the
benefits of British citizenship, the facts that the claimant's children were British by descent from
their British father with whom they had a good relationship, had an unqualified right to live in the
United Kingdom where they had always lived, were being educated and had social links with the
community, and the countervailing considerations of the need to maintain firm and fair
immigration control, the claimant's appalling immigration history and the precariousness of her
position when the children had been conceived, for none of which the children could be blamed,
the claimant's removal would constitute a disproportionate interference with the children's rights
under Article 8 to respect for their family life (post, paras 23–26, 30–33, 38, 39, 45).

*Wan v. Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 considered.

Per curiam . The immigration authorities must be prepared at least to consider hearing directly
from a child who wishes to express a view and is old enough to do so. While their interests may be
the same as their parents' that should not be taken for granted in every case (post, paras 37, 39,
45).

Decision of the Court of Appeal [2009] EWCA Civ 691 reversed.

*S.D. (a minor) v. Commissioner of Police BB 2011 CA 12 (sentence of minor to industrial school, whether
excessive)
22
 [27] The introduction of the PSRA in 2000 fundamentally changed the penal system in Barbados
and expanded the sentencing options available to the criminal courts. It laid down certain
principles to be followed by courts when exercising their powers of sentencing.
[28] Under the PSRA, a custodial sentence includes detention at a School. This is a clear
indication that the proceedings in the Magistrates' Courts are governed by the provisions of the
Act. Consequently, the magistrate, in exercising her power to sentence the appellant, was under a
statutory obligation not to pass a custodial sentence on the appellant unless she was of the opinion
that (a) the offence was so serious that only such a sentence could be justified for the offence; or
(b) where the offence is a violent [...] offence that only such a sentence would be adequate to
protect the public from serious harm from the offender - (see s. 35).

[29] Further, s. 36(2) provides that the custodial sentence shall be for such term as in the opinion
of the court is commensurate with the seriousness of the offence, or the combination of the offence
and other offences associated with the offence; or where the offence is a violent [...] offence, for
such longer term as is necessary to protect the public from the offender.

[30] A custodial sentence should be used as a last resort. As Sir David Simmons, C.J. said in
Leandro Pope v. R (Criminal Appeal No. 11 of 2007, unreported decision of 25 February, 2010) at
paragraph [14]:

"Turning to the Penal System Reform Act, sections 35 and 36 embody the principles of offence-
seriousness and proportionality. In short, no person (including a young person) should be given a
custodial sentence unless the circumstances make it absolutely necessary and, then, for no longer
than is necessary. In its determination of an appropriate sentence, the court will take into account
the offender's age and any guilty plea as mitigating factors."

[31] That observation is in keeping with Article 37(b) of the United Nations Convention on the
Rights of the Child 1989, ratified by Barbados on 9 October 1990, the relevant part of which
reads:

"The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be
used only as a measure of last resort and for the shortest appropriate period of time.”

*Scantlebury v. R BB 2005 CA 3 (murder conviction - appellant 17 years old at time of offence - sentenced to
detention “during her Majesty’s pleasure” – Whether sentence unconstitutional)

[33] We shall refer to s.15(2) later at paragraph [72] but, for the moment, we restrict our
discussion to s.14. It seems clear to us that s.14 was incorporated in the JOA as a response by the
government of Barbados to the requirements of the United Nations Convention on the Rights of
the Child. Barbados signed this Convention on 20th November, 1989. The Convention entered
into force on 2nd September, 1990 and was ratified by Barbados on 9th October, 1990. Although
the Convention as a whole has not been transformed into domestic law, the enactment of s.14
seems to suggest that Parliament, in 1989, desired to act in a manner consistent with Barbados'
international treaty obligations. Art.37 of the Convention contains an express prohibition against
capital punishment for crimes committed by juveniles under the age of 18. Every country in the
world has ratified the Convention except the United States of America and Somalia - see the
judgment of the Supreme Court of the United States in Roper v. Simmons (unreported decision of
1st March, 2005).

[34] The underlying philosophy of the JOA is that children and young offenders should be dealt
with differently by the law from adult offenders. The original JOA of 1932 was seriously deficient
in comparison with its English counterpart of 1908 and the English consolidating Act of 1933, the
Children and Young Persons Act (the CYPA), especially s.53(1) which corresponds with s.14 of
the JOA.

23
*Stockhausen v Willis JM 2008 SC 83(child – custody and access of unmarried parents of child – application to
vary consent order allowing mother unsupervised visits – evidence that visits with mother had negative effect on
child's well-being – s.7 and 18 of the Children (Guardianship and Custody) Act – welfare of the child first and
paramount consideration – right to access that of the child and not of the parent.)

It is trite law that access as between a parent and a child is properly to be regarded as the right of
the child, and that it is normally in the best interests of the child that he have access to both
parents. The right of a child to have access to both parents is reinforced by the provisions of
Article 9 of the United Nations Convention on the Rights of the Child, Article 9, a convention
to which Jamaica is a signatory. The article provides that:

State Parties shall ensure that a child shall not be separated from his or her parents against their
will except when competent authorities subject to judicial review determine in accordance with
applicable law and procedures, that such separation is necessary for the best interests of the
child. Such determination may be necessary in a particular case, such as one involving abuse or
neglect of the child by the parents, or one where the parents are living separately and a decision
must be made as to the child's place of residence.

*DPP v. Mollison [2003] UKPC 6; (2003) 62 WIR 268

*Griffith v. R (2004) 65 WIR 50)

But see McKenzie v Sampson VC 2004 CA 7 and other cases cited on the Status of Children Worksheet dealing
with the lack of equality of treatment under the respective status of children statutes.

QUESTIONS

1. How influential is the principles of the CRC in the case law jurisprudence of the
Commonwealth Caribbean?

2. How much of the principles of the CRC have been incorporated into the domestic laws of the
statutes of the Commonwealth Caribbean? What are the possibilities for even greater success of
this endeavour?

3. “The CRC has been enormously influential – indeed, to many it is regarded as the touchstone
for children’s rights throughout the world.” Discuss with references to Commonwealth
Caribbean case law.

4. “Ratification of the United Nations Convention on the Rights of the Child represents the
international community’s acceptance of a statement of children’s rights which, in many
respects, is considerably in advance of anything currently formulated in terms of rights at the
national level. Discuss.

5. It is no longer right to speak in terms of parental rights. The modern trend is for the courts, in
cases of dispute, to supersede the rights of the parents if such a course is in the best interest of
the child. Discuss

24
 CONSENT TO MEDICAL TREATMENT

In this section, we attempt to look at how all this learning regarding the rights based approach in relation to children
is applied in a difficult area of law even for adults. This is the right to autonomy over one’s own body and in human
rights dogma speaks of the right to liberty and security of the person, the right to privacy and often involves the right
to freedom of religion within the broader scope of freedom of conscience and of course the right to due process and
protection from discrimination.

“One of the most sensitive decisions a judge can make in family law is in
connection with the authorization of medical treatment for children. It engages
the most intensely complicated constellation of consideration and its
consequences are inevitably profound.”
Abella J. in Manitoba v. C (A) 309 DLR (4th) 581[1]
-Supreme Court of Canada

Based on the Law Reform (Age of Majority) Act (Jamaica) s.8, the law recognizes two categories of children; those
who are 16 years and older and those who are under 16.

Based on the common law, the law also recognizes two categories of children in relation to consent to medical
treatment – ‘mature minors’ (popularly called Gillick competent in UK terminology) and ‘immature minors’.

The law therefore divides itself into statute and common law and it is the interplay between these two sources of law
that the law revolves. Transcending these two branches is the human rights provisions of the Constitution as well as
the international standards enumerated in the CRC.

The questions are:

1. Can a minor validly consent to or refuse medical treatment without restriction?

2. In view of the statute, is there any restriction on consent to or refusal of medical treatment by a minor over
16?
3. In view of the statute, can a minor under the age of 16 validly consent to or refuse medical treatment?
4. What is the parental authority over minors, under and over 16 in relation to consent to or vetoing medical
treatment?
5. What is the role and jurisdiction of the courts in relation to consent of minors who are under and over the
age of 16 years?

MINOR over 16 – Statute and Common Law

Law Reform (Age of Majority) Act (Jamaica) s. 8 provides:

(1) A minor who has attained the age of 16 years

(2) can
(a) consent
(b) toANY surgical, medical or dental
treatment
(c) to himself
(d) as effective as if of full age; and

(3) no consent of parent necessary

25
 MINOR UNDER 16 – Common Law

Parties – child, parent, state (court) & doctor

Under the parens patriae jurisdiction, the court reserves the power to make orders in the best interests of the child.
What happens when this jurisdiction conflicts with the child’s right to autonomy, parental right of control, and the
doctor’s medical professional stance of acting in the child’s best interest?

Parent v. State/Court

Parent v. Child(ren)

Child(ren) and Parent v. Court/State

Role of the Doctor

26
 CASE
Re C [1994]
See also Re T (Adult: Refusal of
Treatment), [1993] Fam. 95
Malette v. Shulman (1990) 72 OR
(2d) 417
Gillick [1985] 3 All ER 402
FACTS
Patient diagnosed as
Paranoid schizophrenic
while serving a sentence
of imprisonment. Had
ulcerated foot that was
gangrenous. Refused
amputation which would
save his life. Applied for
an injunction to prevent
amputation by doctors.
Pregnant adult refusal of
blood transfusion—Adult
patient under sedation
and in premature labour
—Patient attended by
mother a Jehovah’s
Witness who opposed to
blood transfusion—father
and boyfriend wanted
transfusion – baby still
born– Transfusion later
necessary
A doctor was held liable
for battery because he
gave an unconscious
Jehovah’s Witness a
blood transfusion despite
the fact that she had a
signed card stating
clearly that she would
not consent to a consensual invasion of her person.
transfusion. Even though
the treatment almost
certainly saved her life.
Mother of 5 daughters
under the age of 16
sought declaration that
doctors giving
contraceptive advice and
treatment to a girl under
16 w/o her parents’
consent were acting
unlawfully.
ISSUE HOLDING
Whether adult can Injunction granted. Adults have the right
refuse life-saving to refuse medical treatment even if they
treatment might die as a result.
Rationale
Not shown to be incapable of
understanding the nature, purpose and
effects of the proposed treatment and so
his right of self-determination had not
been displaced.
Whether refusal Although an adult patient was entitled to
effective refuse consent to treatment irrespective
of the wisdom of his decision, for such a
Whether doctors refusal to be effective his doctors had to
entitled to treat in be satisfied that at the time of his refusal
accordance with his capacity to decide had not been
patient's best interests diminished by illness or medication or
by false assumptions or misinformation,
that his will had not been overborne by
another's influence and that his decision
had been directed to the situation in
which it had become relevant; that
where a patient's refusal was not
effective the doctors were free to treat
him in accordance with their clinical
judgment of his best interests.
Does the end justify the Doctrine of informed consent ensures
means? the freedom to make choices regarding
medical care. The state’s interest in
preserving life or health of a competent
patient must give way to the patient’s
stronger interest in directing the course
of her own life and does not justify
forcing a patient to submit to non-
Whether under 16 can Adolescents under age 16 can consent if
give valid consent; capable of understanding what is
whether infringe proposed; of expressing own wishes.
parental rights and Parental right yields to the child’s right
whether doctor incurs to make his own decisions when he
tortious and criminal reaches a sufficient understanding and
liability intelligence to make up his own mind on
the matter requiring decision.
Rationale
Minor under 16 can contract, sue and be
sued, give evidence under oath, can give
27

Re R [1991] 4 All ER 177
Re W (A Minor) [1992] 4 All ER 627
Re E (A Minor) [1993] 1 FLR 386
sufficiently effective consent to sexual
intercourse. Parental rights to control a
child do not exist for the benefit of the
parent. Only exist to enable the parent to
perform his duties the solution not
dependent on age but on what is best for
the welfare of the child. Doctor often a
better judge than the parents and is
entrusted with discretion to act in the
best interest of his patient. Common law
never treated parental rights as sovereign
and beyond review or control.
15 year-old refused anti- Whether parent or Can consent to but not refuse treatment.
psychotic drug. consent of court could Can have treatment forced upon her.
override child’s refusal Using double key holder analogy Lord
Donaldson said that while in the case of
an adult there was only one key holder,
in the case of the child there will be two
key holders. Gillick does not hold that
the parents ceases to have an
independent right of consent as
contrasted with ceasing to have a right
of determination, that is, a veto. If the
child consents, the parent’s veto is not
determinative, but if the parents consent,
that is sufficient to preclude criminal
liability on the part of the doctors. Either
parent or child could unlock the door to
treatment. But the wardship (parens
patriae) jurisdiction is wider than that of
the parent and is determinative.
16-year old suffered from Whether a court could Gillick limited. Thorpe J. held that she
anorexia nervosa. Did override competent was Gillick competent but that the court
not wish to go to hospital adolescent’s refusal of could make the order. Upheld in the
specializing in treating treatment in the face of Court of Appeal. That court has power
eating disorder. great injury or even to override the refusal of a child whether
death over the age of 16 or under that age but
Gillick competent. Cannot order doctors
Whether a parent could to treat, but to authorize them to treat in
veto child’s consent accordance with their clinical judgment.
Wishes of child of 16/17 years or
younger who is Gillick competent are
greatest importance both legally and
clinically. The inherent power of the
court under its parens patriae
jurisdiction are theoretically limitless
and extend beyond the powers of a
natural parent.
15-year-old boy with Parents argued that as Not having the sufficient maturity and
leukaemia urgently need he was so close to his understanding to be regarded as Gillick
blood transfusion. Both sixteenth birthday, his competent despite ‘obvious
boy and parents devout consent to the treatment intelligence’. Child did not appreciate
Jehovah’s Witness and would be required how much grief his parents would suffer
therefore refused consent under the Family Law if he were to die. The boy did not
28

Wolverhampton MBC v. DB (A
Minor) [1997]
Re L (Medical Treatment: Gillick
Competency) [1998] 2 FLR 810
Re M (A Child) (Refusal of Medical
Treatment), [1999] 2 FLR 1097
to treatment. Reform Act 1969 s.8; understand what the effect of his
alternatively he was refusing blood transfusions was and as
competent to decide he was not yet 16 years, s.8 was not
upon his medical applicable. The welfare of the child was
treatment under the test the paramount consideration and was to
in Gillick v. West be decided by the objective standard of
Norfolk and Wisbech the ordinary mother and father.
AHA [1986] A.C. 112 Notwithstanding the religious
and that it was wrong convictions of the family, the boy's
for the court to interfere welfare demanded that the hospital
and use the should be at liberty to give treatment,
interventionist including the use of blood transfusions.
jurisdiction of
wardship.
B aged 17 suffered from Whether could use Held, that although B had a right to
cocaine/crack addiction force to effect refuse to give consent as she was over
and was pregnant. treatment. 16 that right could be overridden by the
Complications from the court or a person with parental
pregnancy were responsibility for her (local authority).
potentially fatal to her Her refusal is an important factor but it
and the foetus. However carried little weight as it had been
she had a phobia of demonstrated that she could neither
needles, doctors and any comprehend and retain information
medical treatment and about her treatment and was unable to
wished to discharge make a reasoned choice. The local
herself from hospital. authority or her mother could take steps
to protect her best interest, including
reasonable force in order to administer
the correct treatment. Order made that
local authority was entitled to administer
such treatment as was medically
required with the use of reasonable force
necessary to prevent her death or serious
deterioration in her health.
L, a critically injured 14 Whether L was Held, making an order for treatment
year old Jehovah's competent to withhold without L's consent that, despite her
Witness, had refused, on consent if she were maturity, L was still a child. Although
religious grounds, to Gillick competent. her beliefs were sincere, they had not
consent to life saving been developed through a broad and
medical treatment informed adult experience, but through
because it would involve her sheltered upbringing within the
blood transfusions. The Jehovah's Witness community. She
hospital authority sought knew she would die without the
leave to carry out the treatment but had not been informed of
treatment without her the likely gruesome nature of her death.
consent. She was therefore not Gillick competent
and it was in her best interests for the
treatment to be carried out. Indeed,
given the extreme nature of the case,
treatment would have been ordered even
if she had been found to be Gillick
competent.
Doctors treating M, a 15 Right to override veto Leave granted to carry out the operation,
year old girl, concluded that, whilst M's wishes carried weight,
29
 that she would die given her maturity and intelligence, she
without an emergency had gone through a traumatic experience
heart transplant, M and was struggling with a very difficult
refused to consent to the decision. The risks posed by the
operation while her operation and by her possible future
mother consented to the resentment at her wishes being
treatment. A High Court overridden were both outweighed by the
judge was contacted at need to preserve her life.
home, and the Official
Solicitor instructed a It didn’t matter whether she was/not
local agent to visit M to Gillick competent. Parental consent was
ascertain her wishes. She provided and the operation was in the
said she did not want to best interest of M and so her views were
have another person's irrelevant.
heart and be on
medication for life, but
also did not want to die.

Comments
(1) The illness may compromise the child’s ability while understanding the nature of the illness does not fully
comprehend the implications of the failure to treat.

(2) Child’s sincerely and strongly held religious beliefs should be accepted at face value but may lack the
necessary life experience to hold a free and fully informed view on religious matters, particularly if raised
within a deeply religious family.

(3) There has been a dramatic retreat from the high point of children’s right to consent to medical treatment in
Gillick. Gillick has been narrowed to such an extent that whilst Gillick competent children can consent to
medical treatment, they do not have an overriding right to refuse. This means that treatment can be forced
on children against their wishes provided that their parents or the court gives consent.

For critical review of Gillick in the UK, See M. Freeman: “Rethinking Gillick” at

http://books.google.com.jm/books?id=uGR_tnSiZ_gC&lpg=PA201&pg=PA201#v=onepage&q&f=true

Ann Morris, Gillick, 20 years on: arrested development or growing pains? P.N. 2005, 21(3), 158-175
[Westlaw]

(4) Consent is invariably given by the court where the treatment is recommended by the doctor as being in the
child’s best interest.

(5) The only caveat is that the older the child the greater the respect paid by the court to her wishes.

[T]here is no overriding limitation to preclude the exercise by the court of its

inherent jurisdiction and the matter becomes one for the exercise by the court of
its discretion. Nevertheless the discretion is not to be exercised in a moral
vacuum.... [A]s children approach the age of majority, they are increasingly able
to take their own decisions concerning their medical treatment. ... Accordingly
the older the child concerned the greater the weight the court should give to its
wishes, certainly in the field of medical treatment. In a sense this is merely one
aspect of the application of the test that the welfare of the child is the paramount
consideration. It will normally be in the best interests of a child of sufficient age
30
 and understanding to make an informed decision that the court should respect its
integrity as a human being and not lightly override its decision on such a
personal matter as medical treatment all the more so if that treatment is invasive.

... What I do stress is that the judge should approach the exercise of the
discretion with a predilection to give effect to the child's wishes on the basis that
prima facie that will be in his or her best interests. [Emphasis added]
Re W (A Minor) at pp. 643-44 per Balcombe LJ.

(6) Strong presumption in favour of preservation of life. No court in the UK has allowed a child under 16 to
refuse medical treatment that was likely to preserve the child’s prospects of a normal and healthy
future, either on the ground that the competence threshold had not been met or because the court
concluded that it had the power to override the wishes of even a Gillick-competent child.

CANADA
Looking at the jurisprudence in Canada is important for us in the Caribbean because like us there is a constitutional
Bill of Rights which should be taken into account. The locus classicus is the case of Manitoba v. C(A) [2009] 309
DLR (4th) 581 a decision of the Supreme Court of Canada. Therein the Court looked at the statute, the common law
and the constitution in relation to the consent to medical treatment of minors. The questions before the court were:

1. Did the Child and Family Services Act of Manitoba which gave 16 year olds the right to consent to medical
treatment but reserve the court’s power to order medical treatment if the child is unable to understand the
information relevant to making a decision or to appreciate the reasonably foreseeable consequences of
making a decision to consent or refuse medical treatment, preclude such right to consent in relation to a
child under 16 years and thereby empowering the court to make treatment decisions for those under 16,
with or without capacity, based on a ‘best interests’ test? In other words, did the statute oust the Gillick
competence approach to determining these cases?
2. In such a situation was the statute constitutional under the Canadian Charter of Rights and Freedoms which
provide for (a) freedom of conscience and religion; (b) right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the principles of fundamental justice; (c) the
right to equality before the law, equal protection and equal benefit without discrimination in particular
without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability?

The Court held that:

1. Starting from the premise that competent individuals, be it child or adult are and should be free to make
decisions about their bodily integrity, the law was constitutional as it struck a constitutional balance
between the fundamental right to autonomous decision-making in connection with a person’s body and the
law’s persistent attempts to protect vulnerable children from harm.
2. It rejected the appellant’s argument that mature children are at common law entitled to make all decisions
related to their medical care, including the decision to refuse life-saving medical treatment, because the
argument “seriously underrepresents the limits on the ability to accurately assess maturity in any given
child.”
3. The court held that as in the UK the law in Canada is that “where deferring to the wishes of a child under
16 was likely to jeopardize his or her potential for a healthy, future, treatment has always been ordered over
the refusal of the adolescent and his parents.”
4. It is in discussing the application of the concept of ‘best interest’ and its conflict with autonomy that the
case is instructive:

Interpreting Best Interests

31
i. The interpretive approach to "best interests" must be one that is consistent with international
standards, developments in the common law, and the reality of childhood and child protection.

ii. The general purpose of the "best interests" standard is to provide courts with a focus and
perspective through which to act on behalf of those who are vulnerable. In contrast, competent
adults are assumed to be "the best arbiter[s] of [their] own moral destiny" and so are entitled to
independently assess and determine their own best interests, regardless of whether others would
agree when evaluating the choice from an objective standpoint.

iii. The application of an objective "best interests" standard to infants and very young children is
uncontroversial. Mature adolescents, on the other hand, have strong claims to autonomy, but these
claims exist in tension with a protective duty on the part of the state that is also justified.

iv. The tension between autonomy and child protection is real, often dramatic, and always painful.
Any solution to this tension must be responsive to its complexity.

v. In the vast majority of situations where the medical treatment of a minor is at issue, his or her life
or health will not be gravely endangered by the outcome of any particular treatment decision. That
is why courts have determined that medical practitioners should generally be free to rely on the
instructions of a young person who seems to demonstrate sufficient maturity to direct the course of
his or her medical care.

vi. Where a young person comes before the court under s. 25 of the Child and Family Services Act,
on the other hand, it means that child protective services have concluded that medical treatment is
necessary to protect his or her life or health, and either the child or the child's parents have refused
to consent. In this very limited class of cases, it is the ineffability inherent in the concept of
"maturity" that justifies the state's retaining an overarching power to determine whether allowing
the child to exercise his or her autonomy in a given situation actually accords with his or her best
interests. The degree of scrutiny will inevitably be most intense in cases where a treatment
decision is likely to seriously endanger a child's life or health.

vii. The more a court is satisfied that a child is capable of making a mature, independent decision on
his or her own behalf, the greater the weight that will be given to his or her views when a court is
exercising its discretion under s. 25(8). In some cases, courts will inevitably be so convinced of a
child's maturity that the principles of welfare and autonomy will collapse altogether and the child's
wishes will become the controlling factor. If, after a careful and sophisticated analysis of the
young person's ability to exercise mature, independent judgment, the court is persuaded that the
necessary level of maturity exists, it seems to me necessarily to follow that the adolescent's views
ought to be respected. Such an approach clarifies that in the context of medical treatment, young
people under 16 should be permitted to attempt to demonstrate that their views about a particular
medical treatment decision reflect a sufficient degree of independence of thought and maturity.

viii. When applied to adolescents, therefore, the "best interests" standard must be interpreted in a way
that reflects and addresses an adolescent's evolving capacities for autonomous decision-making. It
is not only an option for the court to treat the child's views as an increasingly determinative factor
as his or her maturity increases, it is, by definition, in a child's best interests to respect and
promote his or her autonomy to the extent that his or her maturity dictates. (See John Eekelaar,
"The Importance of Thinking that Children Have Rights" (1992), 6 Int'l J.L. & Fam. 221, at pp.
228-29, and "The Interests of the Child and the Child's Wishes: The Role of Dynamic Self-
Determinism" (1994), 8 Int'l J.L. & Fam. 42.)

ix. This approach to "best interests" finds support in the relevant provisions of the Child and Family
Services Act. The standard a judge is obliged to follow before deciding whether to authorize
32
 treatment for a child under 16 in accordance with s. 25(8) is found in s. 2(1) of the Act. That
section sets out the primacy of the child's best interests and delineates a number of considerations
to be included in making such a determination. These considerations include the mental, emotional
and physical needs of the child; his or her mental, emotional and physical stage of development;
the child's views and preferences; and the child's religious heritage. No priority is given to one
factor over the other.

x. What the blending of these factors will actually yield in any particular case will obviously depend
on the particular child and the particular circumstances of that child. That is because the best
interests standard is necessarily individualistic.

xi. Yet this does not mean, as Kaufman J. in this case seemed to suggest, that the standard is a licence
for the indiscriminate application of judicial discretion. To divorce the application of the best
interests standard from an assessment of the mature child's interest in advancing his or her own
autonomous claims would be to endorse a narrow, static and profoundly unrealistic image of the
child and of adolescence.

xii. The statutory factors reflect decades of careful study into children's needs and how the law can
best meet them. We have come, with time, to understand the significance of so many relevant
considerations which had been previously hidden behind formulaic solutions like "the tender years
doctrine". With our evolving understanding has come the recognition that the quality of decision-
making about a child is enhanced by input from that child. The extent to which that input affects
the "best interests" assessment is as variable as the child's circumstances, but one thing that can be
said with certainty is that the input becomes increasingly determinative as the child matures. This
is true not only when considering the child's best interests in the placement context, but also when
deciding whether to accede to a child's wishes in medical treatment situations.

xiii. Such a robust conception of the "best interests of the child" standard is also consistent with
international instruments to which Canada is a signatory. The Convention on the Rights of the
Child, Can. T.S. No. 3, which Canada signed on May 28, 1990 and ratified on December 13, 1991
describes "the best interests of the child" as a primary consideration in all actions concerning
children (Article 3). It then sets out a framework under which the child's own input will inform the
content of the "best interests" standard, with the weight accorded to these views increasing in
relation to the child's developing maturity. Articles 5 and 14 of the Convention, for example,
require State Parties to respect the responsibilities, rights and duties of parents to provide direction
to the child in exercising his or her rights under the Convention, "in a manner consistent with the
evolving capacities of the child". Similarly, Article 12 requires State Parties to "assure to the child
who is capable of forming his or her own views the right to express those views freely in all
matters affecting the child, the views of the child being given due weight in accordance with the
age and maturity of the child" (see also the Council of Europe's Convention for the Protection of
Human Rights and Dignity of the Human Being with Regard to the Application of Biology and
Medicine: Convention on Human Rights and Biomedicine, E.T.S. No. 164, ch. II, art. 6: "The
opinion of the minor shall be taken into consideration as an increasingly determining factor in
proportion to his or her age and degree of maturity").

xiv. Scrutiny of a child's maturity in a s. 25(8) best interests analysis will require, by definition, an
individualized assessment, having regard to the unique situation of the particular child, including
the nature of the treatment decision and the severity of its potential consequences. In Medico-
Legal Aspects of Reproduction and Parenthood (2nd ed. 1998), J. K. Mason explains:

I suggest that the degree of understanding required for valid consent to a

doctor's advice is different from that needed to refuse to accept an opinion
based on years of study and experience. In so saying, I do not deny that a child
may, at times, be fully capable of a reasonable refusal of treatment — a refusal
33
 which may well be based on considerations other than medical; what I am
proposing is that the level of required understanding may be higher in the latter
than in the former circumstance. In any event, this is a stance the courts are not
afraid to adopt when necessary.
xv. In those most serious of cases, where a refusal of treatment carries a significant risk of death or
permanent physical or mental impairment, a careful and comprehensive evaluation of the maturity
of the adolescent will necessarily have to be undertaken to determine whether his or her decision
is a genuinely independent one, reflecting a real understanding and appreciation of the decision
and its potential consequences.

xvi. As all of this demonstrates, the evolutionary and contextual character of maturity makes it difficult
to define, let alone definitively identify. Yet the right of mature adolescents not to be unfairly
deprived of their medical decision-making autonomy means that the assessment must be
undertaken with respect and rigour. The following factors may be of assistance:

•What is the nature, purpose and utility of the recommended medical treatment? What are
the risks and benefits?

•Does the adolescent demonstrate the intellectual capacity and sophistication to

understand the information relevant to making the decision and to appreciate the potential
consequences?

•Is there reason to believe that the adolescent's views are stable and a true reflection of
his or her core values and beliefs?

•What is the potential impact of the adolescent's lifestyle, family relationships and
broader social affiliations on his or her ability to exercise independent judgment?

• Are there any existing emotional or psychiatric vulnerabilities?

•Does the adolescent's illness or condition have an impact on his or her decision-making
ability?

•Is there any relevant information from adults who know the adolescent, like teachers or
doctors?

This list is not intended to represent a formulaic approach. Its objective is to assist courts in
assessing the extent to which a child's wishes reflect true, stable and independent choices.

- Per Abella J.

Considerations in finding ‘Gillick competent’ and the factors which may be of assistance, but are not intended to
represent a formulaic approach:

1. Does the child understand the nature of their medical condition and the proposed treatment?
2. Does the child understand the moral and family issues involved?
3. How much experience of life does the child have?
4. Is the child in a fluctuating mental state?
5. Is the child capable of weighing the information appropriately to be able to reach a decision?
6. The influence that others have exerted over the child including the withholding of information?
7. Where it is a religious decision, was the child ever free to independently come to her own view?
8. What is the nature, purpose and utility of the recommended medical treatment?
9. What are the risks and benefits?
34
 10. Does the adolescent demonstrate the intellectual capacity and sophistication to understand the information
relevant to making the decision and to appreciate the potential consequences?
11. Is there reason to believe that the adolescent’s views are stable and a true reflection of his or her core
values and beliefs?
12. What is the potential impact of the adolescent’s lifestyle, family relationships and broader social affiliations
on his or her ability to exercise independent judgment?
13. Are there any existing emotional or psychiatric vulnerabilities?
14. Does the adolescent’s illness or condition have an impact on his or her decision-making ability?
15. Is there any relevant information from adults who know the adolescent, like teachers or doctors?

(Herring 5th ed. p. 451)

Canadian Cases in which the

child’s refusal was not upheld.

59. As in the United Kingdom, where deferring to the wishes of a child under 16 was likely to jeopardize his or her
potential for a healthy future, treatment has always been ordered by courts in Canada over the refusal of the
adolescent and his or her parents. In H. (T.) v. Children's Aid Society of Metropolitan Toronto (1996), 138 D.L.R.
(4th) 144 (Ont. Gen. Div.), the 13-year-old patient suffered from a plastic anaemia. She and her mother, both
Jehovah's Witnesses, refused to consent to any treatment involving blood products. The two treating physicians, as
well as a child psychiatrist, testified that the girl lacked the maturity to judge the foreseeable consequences of her
decision. She was found not "capable of expression of refusal of consent" and therefore made a temporary ward of
the state so that she could be treated.

60. In D. (T.T.), Re (1999), 171 D.L.R. (4th) 761 (Sask. Q.B.), a 13-year-old boy refused to consent to further
chemotherapy and surgery of his leg. Rothery J. found that he was not capable of refusing consent because he was
deeply influenced by his father, whom he always obeyed without question. The father controlled the information the
boy was getting about treatment, and misled him with respect to the nature of his condition, the treatment proposed,
and the likelihood that the non-medical alternative therapies the father preferred would be successful. The boy's
decision to refuse treatment was therefore found not to be voluntary, and the court ordered that he receive the
treatments.

61. In Alberta (Director of Child Welfare) v. H. (B.), 2002 ABPC 39, [2002] 11 W.W.R. 752 (Alta. Prov. Ct.), a 16-
year-old girl was diagnosed with acute myeloid leukemia. The recommended course of treatment was intense
chemotherapy, which would require the use of blood products. Such treatment had a success rate of 40-50 percent,
which increased to 50-65 percent if accompanied by a bone marrow transplant. The girl and her parents, Jehovah's
Witnesses, refused to consent to the use of blood products. The father later changed his mind and consented, but the
hospital and physicians would not treat the girl over her own refusal, since they were of the view that she was a
mature adolescent and therefore entitled to refuse treatment. The Director of Child Welfare sought an apprehension
and medical treatment order. Jordan Prov. Ct. J. found that the girl was not mature enough to make the decision to
die, concluding that she had not had the life or developmental experience which would allow her to question her
faith and/or its teachings and that such experience is an essential step in arriving at a personal level of development
such that she can be considered to be a mature minor who has the capacity to refuse medical treatment which is
necessary to save her life. Intelligence, thoughtfulness, exemplary behaviour and notable academic achievement are
not sufficient when the magnitude of the decision faced by a 16 year-old involves a certain risk of death. [p. 761]

The decision was upheld at the Court of Queen's Bench, 2002 ABQB 371, [2002] 7 W.W.R. 616 (Alta. Q.B.),
aff'd2002 ABCA 109, [2002] 7 W.W.R. 644 (Alta. C.A.), leave to appeal refused, [2002] 3 S.C.R. vi (note) (S.C.C.),
on the ground that the relevant provincial legislation ousted the common law rule of mature minor and justified the
court's authorizing treatment in the child's best interests. See also Hôpital Ste-Justine c. Giron [2002 Carswell Que
1182 (Que. S.C.)], 2002 CanLII 34269; U. (C.)(Next Friend of) v. Alberta (Director of Child Welfare), 2003 ABCA
66, 13 Alta. L.R. (4th) 1 (Alta. C.A.).
35
 Canadian cases in which the
child’s refusal was upheld.

62. Where a child's decisional capacity to refuse treatment has been upheld, on the other hand, it has been because
the court has accepted that the mature child's wishes have been consistent with his or her best interests. In Children's
Aid Society of Metropolitan Toronto v. K. (1985), 48 R.F.L. (2d) 164 (Ont. Fam. Ct.), for example, the patient was a
12-year-old girl suffering from acute myeloid leukaemia. She and her parents were Jehovah's Witnesses, and refused
to consent to chemotherapy that would necessitate blood transfusions. The Children's Aid Society apprehended the
girl in order to compel the treatment. Two doctors testified that the odds of a favourable outcome after treatment
were relatively low (around 30 percent) and that the side effects were severe. The trial judge, Main Prov. Ct. J.,
accepted the girl's commitment to her religious beliefs and to fighting against any transfusion, and found that "the
emotional trauma [the child] would experience" in forced treatment would outweigh the anticipated benefits (p.
169). He refused to make her a ward of the state, concluding: "[T]his child's life is equally in danger whichever path
is taken, whether she is left here [in hospital] and subjected to this treatment or she is allowed to leave and be
treated according to the wishes and beliefs of herself and her parents" (p. 170).

63. In Y. (A.), Re (1993), 111 Nfld. & P.E.I.R. 91 (Nfld. U.F.C.), the court was faced with an application from the
Director of Child Welfare to impose treatment on a 15-year-old Jehovah's Witness who had cancer. The treating
doctor was of the view that the young person required blood transfusions as well as chemotherapy. The court found
both that the child was mature and that it was not in his best interests to impose treatment. Wells J. noted that the
treatment was less than 40 percent likely to be effective, was not "essential", and was contrary to the mature
adolescent's wishes. He was not, therefore, found to be a child in need of protection and subject to the state's care.
(See also Walker (Litigation Guardian of) v. Region 2
Hospital Corp.(1994), 116 For a discussion of the UK cases D.L.R. (4th) 477 (N.B. C.A.)).
where the court has sided with the
parents’ refusal to consent to
treatment, see Herring pp 478-489.
7th edition

*Re T (A minor) (Wardship: Medical Treatment) [1997] 1 FLR 502

T was born with a life threatening liver defect, which required a liver transplant if the child was to live. The mother,
M, refused to consent to the operation as she considered it was in the child's best interests not to suffer stressful and
painful invasive surgery. The judge at first instance considered medical evidence that the chances of success were
good and held that M's decision was unreasonable and it was in the child's best interests for the operation to go
ahead. M appealed.

Held, allowing the appeal that a child's welfare was always the paramount consideration of a court exercising its
inherent jurisdiction and, although the judge was correct in considering expert medical evidence, he should also
36
have taken broader non-medical factors into consideration when assessing the reasonableness of M's decision. M
was a health care professional with knowledge of the effects of surgery on children and the aftercare required. The
judge should have considered whether it was in the child's best interests that the mother should be forced to take on
the commitment of caring for the child after surgery with which she did not agree. The judge's decision was
therefore flawed as the paramount consideration of the court was not the reasonableness of M's decision, but the
consideration of the child's best interests, taking into account all factors, not just medical considerations. It was in
T's best interests that decisions as to his future treatment be left to his parents.

*Re OT [2009] EWHC 633 (Fam); 2009 WL 1321846

Summary: Withdrawal of life sustaining treatment which was no longer in the patient's best interests was not a
breach of the European Convention on Human Rights 1950 Art.2 or Art.8. Where there was medical evidence that a
seriously unwell nine-month-old child was experiencing distress and long-term paediatric care was not in his best
interests, a hospital trust was granted orders and declarations allowing ventilation to be withdrawn and offering the
child palliative care to allow him to die with the least distress.

The applicant hospital trust applied for orders and declarations concerning the medical care of a seriously unwell
nine-month-old child (T).

T was the son of the first and second respondent parents (P). T was admitted to hospital aged three weeks and was
found to be suffering from a mitochondrial condition of genetic origin. Since his admission to hospital T was
entirely dependent upon a ventilator for breathing. As a direct result of his condition, he suffered brain stem damage,
a metabolic stroke, inflammation leading to calcification in his brain and atrophy of his brain and brainstem. He had
fits and abnormal movements and was unable to breathe spontaneously. T required a central Hickman line due to
venous access difficulties and remained on a respirator. He could not suck or swallow, was fed by a naso-gastric
tube, and required suctioning of oral secretions four times an hour. At various crisis points, he had required
prolonged oxygen treatment, sometimes by bagging, which in itself would damage his lungs over a sustained period.
The medical opinion was that T was experiencing distress and long-term paediatric care was not in his best interests.
P wanted T to have all available treatment. An impasse was reached and the trust made an emergency application for
declarations that it was not under any duty to provide further invasive treatment and that it was lawful to withdraw
artificial ventilation. P resisted the application and the case was listed for hearing to enable the parties to adduce
evidence. The trust duly sought orders that it or the medical practitioners having responsibility for the treatment and
care of T be at liberty to treat him in accordance with their clinical discretion and a declaration that the trust's staff
should furnish such treatment and nursing care as might be appropriate to ensure that T suffered the least pain and
distress and retained the greatest dignity.

The trust submitted that the evidence of all the treating doctors and the experts was unanimous: T's condition was
serious and progressive and his decline was inevitable; future treatment was futile and would only escalate his
suffering. The trust's position was that ventilation should therefore be withdrawn immediately and T offered
palliative care allowing him to die with the least distress. P contended that T would get better and wanted everything
done to prolong his life. P further submitted that there had been a breach of their rights and those of T contrary to the
European Convention on Human Rights 1950 art.8 in that the application should not have been brought in an
emergency and that they should be permitted further time in order to present their case.

Declaration granted in favour of claimant. (1) Whilst it was necessary so far as possible for parents to be in a
position to address and respond to an application, emergency applications to the court were not in themselves in
breach of a respondent's human rights, Glass v. United Kingdom (61827/00) [2004] 1 F.L.R. 1019 and Portsmouth
NHS Trust v. Wyatt [2005] EWCA Civ 1181, [2005] 1 W.L.R. 3995 considered. P had had a long period of time
since the dispute with the trust crystallised to seek and obtain medical opinions. Every opportunity had been given to
them during the hearing. Particularly bearing in mind the crisis which now faced T, there was no realistic basis upon
which it could be concluded that P had been denied a fair trial or that there had been any defect in the process. (2)
Those with parental responsibility could consent to medical treatment on behalf of a child: if there was no consent
the court, in the exercise of its inherent jurisdiction, could make such orders as it thought were in the best interests of

37
the child in question, J (A Minor) (Wardship: Medical Treatment), Re [1991] Fam. 33 applied. The role of the court
was to exercise an independent and objective judgment on the basis of all the evidence, T (A Minor) (Wardship:
Medical Treatment), Re [1997] 1 W.L.R. 242 applied. The fundamental principle of the sanctity of life was not
absolute: whilst art.2 of the Convention imposed a positive obligation to give life sustaining treatment, it did not
impose an absolute obligation to treat if medical opinion was that such treatment would be futile, NHS Trust A v. M
[2001] Fam. 348 and R. (on the application of Burke) v. General Medical Council [2005] EWCA Civ 1003, [2006]
Q.B. 273 applied. Withdrawal of life sustaining treatment which was no longer in the patient's best interests was not
a breach of art.2 or art.8 of the Convention, R (Burke) applied. In the instant case, the medical evidence as to T's
condition and prognosis had to be accepted and, weighing up the disbenefits or burdens of continuing T's treatment
against the benefits to T of ongoing treatment, it was appropriate to make the declarations as sought.

*Re MM (Medical Treatment) [2000] 1 FLR 224

Summary: children welfare; medical treatment; difference of opinion as to treatment for immunodeficiency

Abstract: M, a seven year old Russian child, suffered from immunodeficiency for which he was receiving
immunostimulant therapy, a treatment which had the approval of his parents prior to M coming to the UK. However,
doctors who saw the child in this country recommended that he be treated with immunoglobin, a treatment that
would have to continue for the rest of his life. The parents were not happy with this due to an early misdiagnosis by
English doctors and because the Russian treatment had been working well. They were also concerned about the
quality and availability of blood products on their return to Russia. The parties agreed to an order before the hearing.

Held, that in accordance with the agreed order, the immunoglobin treatment would continue but the parents were to
be closely involved in decision making. The parents' wish that doses be as small as possible was also noted. It would
in any event be open to any of the parties to return to the court for further directions. In the instant case, the parents'
misgivings would have been overridden in the absence of agreement because of the overwhelming medical evidence
in favour of the immunoglobin treatment.

*Re A (Conjoined Twins: Medical Treatment) [2000] 4 All ER 961

Summary: The parents of conjoined twins, M and J, appealed against a ruling that they should be surgically
separated, contending that the judge had erred in his conclusion that separation would be lawful and in the best
interests of both children. The court held that the operation to separate the twins would only serve the best interests
of J, but that if a balancing exercise were then undertaken, in which the welfare of each child were weighed, the
balance fell decisively in J's favour. Justification for the procedure could be found in the application of the principle
of necessity following Airedale NHS Trust v Bland [1993] A.C. 789, since without intervention the death of both
children was inevitable.

The parents of six week old Siamese twins, M and J, appealed against a ruling granting medical staff authority to
proceed with an elective surgical separation. M had severe brain abnormalities, no lung tissue and no properly
functioning heart. The blood supply keeping M alive emanated from J who was in all other essential respects
functioning and developing normally. The judge at first instance held that the operation would be in the interests of
both children on the basis that for J it afforded a good chance of a normal and independent life and that for M it
offered relief from a potentially painful few months of life as J grew more active. It was further held that the
operation was lawful since the withdrawal of J's blood supply from M was comparable with the situation where a
doctor lawfully withheld nourishment from a patient, Airedale NHS Trust v. Bland [1993] A.C. 789 cited. In their
appeal the parents contended that the judge had erred in his conclusions that the operation was both in the interest of
each child and lawful.

Held, dismissing the appeal, that (1) while the wishes of the parents were entitled to great respect, the court was
obliged to determine the issue on the basis that the welfare of the children was paramount, B (A Minor) (Wardship:
Medical Treatment), Re [1981] 1 W.L.R. 1421 referred to and B (A Minor) (Wardship: Sterilisation), Re [1988]
A.C. 199 applied; (2) the operation was clearly in the best interests of J since it would offer her the prospect of an
38
independent existence and normal life expectancy, as opposed to almost certain death within a few months due to
heart failure if she remained joined to M. The judge had, however, erred in his conclusion that M's life was of no
value to her and that the operation, involving her certain death, was in her best interest. Each human life had an
equal value and the issue for determination was not whether M's interest was best served by discontinuing treatment
to prolong her life, but whether it was best served by active invasion of her bodily integrity, when the inevitable
consequence of that was death. That would take away her inherent right to life; hence it could not be beneficial to
her, Bland distinguished. Having concluded that the operation was in the interests of one child but not the other the
court was obliged to conduct a balancing exercise to ascertain the least detrimental course of action, Birmingham
City Council v. H [1994] 2 A.C. 212 considered. Having conducted such an exercise, the balance fell decisively in
J's favour since M's death was inevitable within a short time and therefore the operation would be permitted, and (3)
the operation would not constitute murder since the three components of the doctrine of necessity were satisfied,
namely that (a) the act was required to avoid inevitable and irreparable evil; (b) no more would be done than was
reasonably necessary for the purpose to be achieved, and (c) the evil to be inflicted was not disproportionate to the
evil avoided, R. v. Dudley (Thomas) (1884) 14 Q.B.D. 273 and Airedale considered.

INTOLERABLE LIFE VS .BEST INTEREST

*Re L (Medical Treatment: Benefit) 2004 WL 3246082

Summary: medical treatment; children’s welfare; baby suffering from life threatening genetic disorder; best interest
of child not to undergo aggressive treatment in form of mechanical ventilation

The applicant National Health Service Trusts (B) applied for a declaration that it would be lawful not to provide
further aggressive treatment in the form of mechanical ventilation to a nine month old baby suffering from a life
limiting genetic disorder. L was born with trisonomy 18, known as "Edward's Syndrome", as a result of which he
suffered from multiple heart defects, chronic respiratory failure, gastroesophageal reflux, severe developmental
delay, epilepsy and hypertonia and had remained in hospital since birth. He had suffered cardiac and respiratory
arrests on many occasions and lesser episodes of desaturation on a normal, almost daily, basis. There were
difficulties feeding L and he required increasing amounts of oxygen. The agreed medical position was that the
condition was incurable and most children died within a few weeks or months. B sought a declaration that it would
be lawful not to provide mechanical ventilation. L's mother did not wish the possibility of mechanical ventilation to
be excluded in the event of an emergency.

Held, granting a declaration, that the test to be applied was "best interests" which were interpreted more broadly
than "medical interests" and included emotional and other factors, Portsmouth NHS Trust v. Wyatt [2004] EWHC
2247 applied. There was a strong presumption in favour of preserving life, but not where treatment would be futile,
and there was no obligation on the medical profession to give treatment that would be futile. The court should be
focusing on best interests rather than the concept of intolerability although the latter might be encompassed in the
former. The task was therefore to weigh up the advantages and disadvantages of giving or not giving potential
treatments, and to balance them in order to decide the best interests of L with regard to his future treatment, J (A
Minor) (Wardship: Medical Treatment), Re [1991] Fam. 33 applied. L had only a few weeks or months to live. He
was already to a great extent dependent on oxygen to keep him alive and would only go on to a mechanical
ventilator if everything else failed. The process of mechanical ventilation, even if achieved by heavy sedation,
carried with it the heavy risk of cardiac arrest, and that once applied he would not be able to breathe without it. In
that event he would lose the closeness of his mother, and that would not make his life worth living. It would not be
in L's best interests, seen in the broadest possible way, taking into account his emotional need to continue his
relationship with his mother and the sort of life he would lead permanently connected to a mechanical ventilator.
The risks outweighed the benefits

39
*Portsmouth NHS Trust v. Wyatt [2005] 1 WLR 3995

Summary: The best interests of a child, in the context of the withholding of medical treatment, were not to be
determined by the test of whether the child's quality of life would be intolerable. Best interests encompassed
medical, emotional and all other welfare issues.

Abstract: The appellant parents (P) sought permission to appeal against declarations made in respect of the medical
treatment of their daughter (C) and appealed against the decision to continue and not to discharge those declarations.
C had been born prematurely and had never left hospital. Her neurological condition was "as bad as it could be".
Among other disabilities C suffered from chronic lung disease. The doctors treating her believed that it was not in
her best interests to be ventilated if she contracted an infection or suffered some other crisis which was likely to lead
to her death, but which could not be treated by drugs and thus required her to be ventilated if she was to stand any
chance of surviving. P disagreed and the respondent NHS trust had obtained the declarations in issue that authorised
the doctors in essence not to ventilate C in the event that she suffered an infection that led or might lead to a
collapsed lung and which proved resistant to antibiotics. After a further hearing the judge refused to discharge the
declarations, finding that there had been no change in her underlying condition and that she remained terminally ill,
but directed that the case should be reviewed after six months to consider whether the declarations should be further
continued. P submitted that (1) the correct test of C's best interests was not that applied by the judge but that of
intolerability. Applying that test, C's life could not be said to be intolerable and accordingly aggressive treatment
which would be likely to save her life and could restore her to her current state was in her best interests; (2) the
judge had been wrong to determine C's best interests and make declarations in advance of any crisis.

Held, dismissing the appeal, that (1) the best interests of a child in the context of the withholding of medical
treatment were not to be determined by the test of whether the child's life if given the treatment would be
intolerable, B (A Minor) (Wardship: Medical Treatment), Re [1981] 1 W.L.R. 1421 and J (A Minor) (Wardship:
Medical Treatment), Re [1991] Fam. 33 considered. Best interests were interpreted more broadly than medical
interests and included emotional and other factors. There was a strong presumption in favour of preserving life, but
not where treatment would be futile, and there was no obligation on the medical profession to give treatment that
would be futile. The court had to focus on best interests rather than the concept of intolerability although the latter
might be encompassed within the former, L (A Child) (Medical Treatment: Benefit), Re [2004] EWHC 2713 (Fam),
[2005] 1 F.L.R. 491 applied. Best interests encompassed medical, emotional and all other welfare issues, A (Mental
Patient: Sterilisation), Re [2000] 1 F.L.R. 549 applied, W Healthcare NHS Trust v. H [2004] EWCA Civ 1324,
[2005] 1 W.L.R. 834 distinguished, and R. (on the application of Burke) v. General Medical Council [2004] EWHC
1879 (Admin), [2005] Q.B. 424 doubted. The judge had approached the best interests question correctly, there was
no error of law and permission to appeal against his decision in principle to make the declarations was refused. (2)
There was a tension between the concept of a declaration, which was designed to state what was lawful in given
circumstances, and a situation that was sufficiently fluid to render it likely that the circumstances might change, with
the consequence that the lawfulness of the conduct identified in the declaration might be called into question.
However on the facts of the instant case and in view of the medical consensus that C's underlying condition had not
changed, the judge had been entitled to continue the declarations and right to order a review. The declarations were
permissive, not mandatory, and the trust's decision not to re-ventilate C was being kept under clinical review and
would be discussed with P before it was implemented.

40
 QUESTIONS

1. Mary is 16 years old and has decided that she identifies with being a boy and that she is a boy in a
girl’s body. She has consulted a surgeon who consents to remove her breasts as the first step in having a
sex change. Her parents wish to stop the procedure, but she is adamant.

Advise Mary.

Would it make a difference to your answer if Mary wanted to have breast-reduction surgery done because
she is very self-conscious of her large breasts from which she gets a lot of teasing from men on the street
who believe that she is an adult?

2. Mandy, 15 years old, has a very serious heart condition. She is intelligent, personable and holds very
strong views from which she cannot easily be dissuaded. Last month, because of Mandy’s rapidly
deteriorating health, her doctors have recommended to Mandy and her parents that she urgently
undergoes heart transplant surgery. Her doctors, who have treated Mandy from infancy, are of the opinion
that the prospects of the surgery being successful and impacting positively on Mandy’s quality of life are
as high as 80%. However, while the likelihood of Mandy surviving beyond 21 years is put at about 45%

Mandy is adamant that she does not want to live with someone else’s heart in her body and refuses to
undergo the surgery. Her parents are devout Jehovah Witnesses and because of the need for blood
transfusion during the surgery they oppose it. She has succeeded in persuading her distraught parents to
support her decision. Mandy’s doctors are very concerned about her decision and have come to you for
advice as to whether they can successfully challenge Mandy and her parents’ decision.

Answer BOTH (i) and (ii).

i. Advise Mandy’s doctors; and

ii. Would it make a difference if the proposed surgery was a rhinoplasty (nose job) operation to which her
parents objected?-

3. “The paramountcy of the welfare of the child is said to be the golden thread that runs through the law
relating to children. However, the application of this principle is neither practical nor just in some
situations.”

Discuss.

4. Is there a difference between a welfare-based approach and a rights based approach? (Herring p. 446)

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