0521863120 cambridge university press parental responsibility young children and healthcare law may 2007

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PA R E N TA L R E S P O N S I B I L I T Y, YO U N G
C H I L D R E N A N D H E A LT H C A R E L AW

This book provides a critical analysis of the law governing the provision
of healthcare to young and dependent children, identifying an understanding of the child as vulnerable and in need of protection, including
from his or her own parents. The argument is made for a conceptual
framework of relational responsibilities which would ensure that consideration is given to the needs of the child as an individual and to the
experiences of parents gained as they care for their child, and the wider
context, such as attitudes towards disability, public health issues or the
support and resources available, is examined. This book will make an
important contribution to understanding the law regulating the provision of healthcare to young and dependent children and to the development of a discourse on responsibility.
j o b r i d g e m a n is a Senior Lecturer at the Sussex Law School,
University of Sussex. She has published widely in the fields of healthcare
law and children.



PA R E N TA L R E S P O N S I B I L I T Y,
YO U N G C H I L D R E N A N D
H E A LT H C A R E L AW
JO BRIDGEMAN


CAMBRIDGE UNIVERSITY PRESS

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© Joanna Bridgeman 2007
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To my family



CONTENTS

Acknowledgements

Table of cases
Table of legislation and international instruments

ix
xi
xviii

1 Parents, young children and healthcare law
Introduction
The legal construction of the young child
The nature and scope of children’s rights
Parental responsibility
Taking responsibility: parents, young children and healthcare law

1
1
4
14
23
40

2 Child-centred healthcare services for children
Introduction: children’s healthcare services
The health of children in England and Wales
The Bristol Royal Infirmary Inquiry
Victoria Climbié, the Laming Inquiry and Every Child Matters
Integrated children’s services
The National Service Framework for Children, Young People
and Maternity Services
Challenging resource allocation decisions

Conclusion

46
46
47
51
62
64

3 Child health and parental obligations
What is a parent and what does being a parent involve?
Minimum standards of parenting
The welfare or best interests principle
Childhood immunisation: in the best interests of the child?
Circumcision: in the best interests of the child?
Taking responsibility: parents and professionals
vii

66
73
79
81
81
84
100
108
117
120

contents

viii

4 In the best interests of the child?
Introduction
The child as an individual
The child situated within caring relationships
Parental beliefs and values
Inadequacies of the current legal framework

123
123
126
133
142
155

5 The quality of life of severely disabled children
Introduction
The responsibility of deciding about life-prolonging treatment
Best interests: intolerable life?
Caring: a shared endeavour?
Responsibility of the court
The care of severely disabled children

158
158
170
173

181
190
193

6 Obligations and caring responsibilities
Introduction
Caring for children: the cost of wrongful conception/birth
Making amends, taking responsibility and caring for children
with disabilities
Duties of care?
Obligations, responsibilities and caring

196
196
198

7 Relational responsibilities
Introduction
Law reform
Legal responsibilities

228
228
229
233

Bibliography
Index

204

217
226

243
256


ACKNOWLED GEMENTS

This book is the result of the natural development of my research from the
law regulating the healthcare of adolescents and women to that governing
the health of children which occurred, in part, due to the arrival of George
and, a few years later, Arthur. It is also an attempt to develop a sustained
analysis of the law from the perspective of the feminist ethic of care which
for me continues to provide, intellectually and instinctively, a compelling
critique of two central issues of law – the nature of the self and the resolution of dilemmas. It was important to me that I provide an academic argument for recognition of the care taken by the vast majority of parents for
their children. It was my own mother, in a conversation about the concepts
which defined parenthood, who identified responsibility as the central way
of thinking about and experience of parenthood. That the law has defined
the relationship of parent to child in terms of responsibility without giving
it proper definition left the way open for an examination of the concept of
parental responsibility through consideration of parents who take responsibility for meeting the healthcare needs of their child.
There are many people to thank for giving me support in the process of
writing this book. Malcolm Ross, as Head of Department at the Sussex Law
School, has been an enormous source of support and encouragement
throughout as well as providing insightful and extremely useful comments
upon an earlier draft of a substantial part of the book. The Child and
Family Law Research Group in the department has provided an excellent
forum for discussion of the concept of relational responsibility through
comparison with other concepts of responsibility in the family. Colleagues

have also read drafts of this work at various stages and by their contributions helped me to clarify my argument, for which I thank Craig Barker and
Heather Keating.
In a different way, I have received enormous support from my friends.
Their interest and their positive reaction to the argument I have presented,
ix


x

acknowled gements

whether it was on a summer walk on the Downs or over a winter supper,
provided a great source of encouragement. But most of all, I must thank all
my family for their interest, support and encouragement: in particular,
David, for his practical and emotional support, for understanding and for
being there; and George and Arthur, who cannot believe how long it can
take to write one book. Tonight, when they return from playing with their
friends, and ask as they have now for weeks, ‘Have you finished the book
yet?’ I’ll be able to give them the answer they are looking for.


TABLE OF CASES

A v United Kingdom [1998] 2 FLR 959
A and D v B and E [2003] EWHC 1376 (Fam)

98
111–17

AD v East Kent Community NHS Trust [2002] EWCA Civ 1872

199

Adey v Leeds Health Authority and another, QBD,
1 December 2000 (web.lexis-nexis.com/professional/)

224

Airedale NHS Trust v Bland [1993] AC 789

176, 179

Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245
B (Child) [2003] EWCA Civ 1148 (CA)

14
111–13

B v UK [2000] 1 FLR 1

82

Barrett v Enfield LBC [1997] 3 WLR 628

97

Barrett v Enfield LBC [1999] 3 WLR 79

97

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

226

Bolitho v City and Hackney HA [1997] 4 All ER 771

226

Burton v Islington HA; De Martell v Merton and Sutton HA [1993]
QB 204

14

Carmarthenshire County Council v Lewis [1955] AC 549

96

DA v North East London Stategic Health Authority [2005]
EWHC 950 (QB)

206

Decision as to the Admissibility of Application no. 61827/00
by David and Carol Glass against the United Kingdom, ECHR,
18 March 2003, (2003) 37 EHRR CD66

166

Farrell v Merton, Sutton and Wandsworth HA 57 BMLR 158
(web.lexis-nexis.com/professional/)

217

xi


xii

table of cases

French v Thames Valley Strategic Health Authority [2005]
EWHC 459 (QB)

206

Gaynor and another v Warrington HA and another,
9 March 2000 (web.lexis-nexis.com/professional/)

202

Gentleman v North Essex Health Authority, 27 June 2001
(web.lexis-nexis.com/professional/)

207

Gillick v West Norfolk and Wisbech AHA and another [1985]
3 WLR 830
24, 25, 42, 99, 100
Glass v United Kingdom [2004] 1 FLR 1019

4, 20, 99, 164–70

Greenfield v Flather [2001] EWCA Civ 113

199

Groom and Selby [2001] EWCA Civ 1522

197, 202

Hardman v Amin 59 BMLR 58 (web.lexis-nexis.com/professional/)

202

Holsgrove v South West London Strategic Health Authority [2004]
EWHC 501 (QB)

207

Ibrahim (a Minor) v Muhammad; Ibrahim and another
v Muhammad, 21 May 1984 (web.lexis-nexis.com/professional/)

118

J v C [1970] AC 668

106

JD (FC) v East Berkshire Community NHS Trust and
others and two other actions (FC) [2005] UKHL 23

218–22

Julien and another v East London and City Health Authority,
10 November 2000 (web.lexis-nexis.com/professional/)

206

Kingsberry v Greater Manchester Strategic Health Authority
[2005] EWHC 2253 (QB)

207

Lee v Taunton and Somerset NHS Trust [2001] 1 FLR 419
Loveday v Renton and another, 30 March 1988
(web.lexis-nexis.com/professional/)

202, 203
110–11

M v Newham [1995] 3 All ER 353

222

Macey v Warwickshire HA [2004] EWHC 1198 (QB)

207

Martin v Norfolk and Norwich Healthcare NHS Trust,
25 January 2001 (web.lexis-nexis.com/professional/)

206

McFarlane v Tayside Health Board [1999] 3 WLR 1301

199–204


table of cases

xiii

Milkhu v North West Hospitals NHS Trust [2003]
EWHC 94 (QB)

207

Morris v Blackpool Victoria Hospital NHS Trust [2004]
EWCA Civ 1294

206, 208

A National Health Service Trust v D [2000] 2 FLR 677

161–2, 183–4

Neale v Queen Mary’s Sidcup NHS Trust [2003] EWHC 1471 (QB)
An NHS Trust v MB [2006] EWHC 507 (Fam)

213

102, 147, 162,
163, 180–1, 184, 191

North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792

219

Nyarko (a Minor by Her Mother and Litigation Friend Owusu)
v Newham Primary Care Trust [2003] EWHC 1687

207

Oakey v Jackson [1914] 1 KB 216
Page v Plymouth Hospitals NHS Trust [2004] EWHC 1154
Parkinson v St James and Seacroft University Hospital
NHS Trust [2001] EWCA Civ 530
Parry v North West Surrey HA, 29 November 1999
(web.lexis-nexis.com/professional/)
Portsmouth Hospitals NHS Trust v Wyatt and others [2005]
EWHC 117 (Fam) (28 January 2005)

92
207
201–4
210
4, 193

Portsmouth NHS Trust v Wyatt and Wyatt, Southampton
NHS Trust Intervening [2004] EWHC 2247 (7 October 2004)

4, 18, 174,
175, 177, 187, 193
Poynter v Hillingdon Health Authority 37 BMLR 192
(web.lexis-nexis.com/professional/)
President’s Direction: HIV Testing of Children [2003] 1 FLR 1299
The Queen v Robert Downes 1 QBD 25

149, 223–4
151
87

R (on the application of Axon) v Secretary of State for Health
[2006] EWHC 37

25–6, 42

R v Arthur 12 BMLR 1 (web.lexis-nexis.com/professional/)

92, 189–90

R v Cambridge District Health Authority, ex parte B [1995]
1 FLR 1055

3, 75–8


xiv

table of cases

R v Cambridge District Health Authority, ex parte B (No. 2)
[1996] 1 FLR 375

77

R v Central Birmingham Health Authority, ex parte Collier, CA,
6 January 1988 (web.lexis-nexis.com/professional/)

73–4

R v Central Birmingham Health Authority, ex parte Walker; R
v Secretary of State for Social Services and another, ex parte Walker,
QBD, 3 BMLR 32, 24 November 1987
(web.lexis-nexis.com/professional/)

73–4

R v Harris and another 23 BMLR 122
(web.lexis-nexis.com/professional/)

88–91

R v Hayles [1969] 1 QB 364

91

R v Lowe [1973] QB 702

87

R v North Derbyshire Health Authority, ex parte
Fisher 38 BMLR 76 (web.lexis-nexis.com/professional/)

79

R v NW Lancashire Health Authority, ex parte A, D, and
G (2000) 8 Med Law Rev 129

79

R v Portsmouth Hospitals NHS Trust, ex parte
Glass 50 BMLR 269 (web.lexis-nexis.com/professional/)

4, 165

R v Portsmouth Hospitals NHS Trust, ex parte Glass [1999]
2 FLR 905

4, 165, 191

R v S and M [1995] Crim LR 486

91

R v Senior [1899] 1 QB 283.

86–7

R v Sheppard and another [1981] AC 394

86–7

R v Wills [1990] Crim LR 714

91

R v Young 97 Cr App Rep 280

91

Rand and another v East Dorset HA [2000]
Lloyd’s Rep Med 181 QBD (web.lexis-nexis.com/professional/)

202

Re A (Children) (Conjoined Twins: Surgical Separation) [2001]
2 WLR 480
3, 92–3, 101, 106, 125, 128–33, 134, 148–9, 153–5, 176–7
Re A (Male Sterilisation) [2000] 1 FLR 549
Re B (a Minor) (Wardship: Medical Treatment) [1981]
1 WLR 1421

101–2
160, 189–90


table of cases

xv

Re B (a Minor) (Wardship: Sterilisation) [1988] AC 199

101

In re C (a Baby) [1996] 2 FLR 43

161

In re C (a Child) (HIV Testing) [2000] 2 WLR 270

93–5, 107, 125,
149–55, 157

Re C (HIV Test) [1999] 2 FLR 1004

151

Re C (a Minor) (Medical Treatment) [1998] 1 FLR 384

147, 161

Re C (a Minor) (Wardship: Medical Treatment) [1989]
3 WLR 240

160, 178, 185

Re D (a Minor) (Wardship: Sterilisation) [1976]
1 All ER 326

99

Re E (a Minor) (Wardship: Medical Treatment) [1993] 1 FLR 386

42

Re F (In Utero) [1988] 2 All ER 193

152

Re J (Child’s Religious Upbringing and Circumcision) [1999]
2 FLR 678

118–20

Re J (Child’s Religious Upbringing and Circumcision) [2000]
1 FLR 571

83, 118

Re J (a Minor) (Child in Care: Medical Treatment) [1992]
3 WLR 507

75, 190

Re J (a Minor) (Wardship: Medical Treatment) [1991]
2 WLR 140

59, 160, 173, 175

Re L (Medical Treatment: Benefit) [2004] EWHC 2713

(Fam)

4, 162, 188

Re L (Medical Treatment: Gillick Competency) [1998] 2 FLR 810

42

Re M (Medical Treatment: Consent) [1999] 2 FLR 1097

42

Re MB (Medical Treatment) [1997] 2 FLR 426
Re MM (Medical Treatment) [2000] 1 FLR 224

101
125, 126–7, 136–7, 156

Re O (a Minor) (Medical Treatment) [1993] 2 FLR 149

125, 128, 142–7,
156

Re P (Medical Treatment: Best Interests) [2003] EWHC 2327

42

Re R (a Minor) (Wardship: Consent to Treatment) [1991]
3 WLR 592

42


xvi

table of cases

Re R (Minor) 15 BMLR 72 (web.lexis-nexis.com/professional/)

125, 128
142–7

Re S (a Minor) (Consent to Medical Treatment) [1994] 2 FLR 1065
Re S (a Minor) (Medical Treatment) [1993] 1 FLR 376

42

125, 128, 142–7,
156

Re S (Parental Responsibility) [1995] 2 FLR 648

82

Re S (Specific Issue Order: Religion: Circumcision) [2004] EWHC 1282 119
Re T (a Minor) (Wardship: Medical Treatment) [1997] 1 WLR 242 17–18,
103, 107, 125, 128, 134, 137–42
Re W (a Child) CA, 8 March 2000
(web.lexis-nexis.com/professional/)

116

Re W (a Minor) (Medical Treatment: Court’s Jurisdiction) [1992]
3 WLR 758
Re Wyatt [2005] EWHC 2293 (Fam) (21 October 2005)

186–7, 193

Re Wyatt [2006] EWHC 319 (23 February 2006)

4, 193

Re Y [1997] 2 WLR 556

102, 104

Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52
Reynolds v North Tyneside Health Authority, 20 May 2002
(web.lexis-nexis.com/professional/)

42, 139

202–4
207

Royal Wolverhampton Hospital NHS Trust v B, 7 September 1999
(web.lexis-nexis.com/professional/)
161, 185
S v W and another (Child Abuse: Damages) [1995] 1 FLR 862

97

S v Walsall MBC and others [1986] 1 FLR 397

95

Sheldon-Green v Coventry HA [2004] All ER (D) 288

206

Simms v Birmingham Health Authority 58 BMLR 66
(web.lexis-nexis.com/professional/)

207

Donald Simms and Jonathan Simms v An NHS Trust and
Secretary of State for Health; PA and JA v An NHS Trust and
Secretary of State for Health [2002] EWHC 2734
Smith v West Yorkshire HA, 27 May 2004
(web.lexis-nexis.com/professional/)

106–7, 142
206, 207


table of cases

xvii

Smithers v Taunton and Somerset NHS Trust [2004] EWHC 1179

Stephens v Doncaster HA, 16 June 1995
(web.lexis-nexis.com/professional/)

213

Stubbings v Webb and another [1993] AC 498

97

Surtees v Kingston-upon-Thames Borough Council;
Surtees v Hughes and another [1991] 2 FLR 559

95–6

Thompson v Bradford [2005] EWCA Civ 1439

109–10, 224–5

Thornson v James and others, 29 July 1997
(web.lexis-nexis.com/professional/)

110, 224–5

Tredget and Tredget v Bexley HA [1994] 5 Med LR 178

217

Wyatt v Portsmouth NHS Trust and Wyatt (By her Guardian)
(No. 3) [2005] EWHC 693 (Fam) (21 April 2005)
Wyatt and another v Portsmouth Hospital NHS and

another [2005] EWCA Civ 1181 (12 October 2005)

206,
208, 211

4, 187, 193

4, 101, 102, 174, 193


TABLE OF LEGISLATION AND
INTERNATIONAL INSTRUMENTS

Legislation

The Adoption and Children Act 2002, s. 111

82

The Adoption and Children Act 2002 (Commencement
Order No. 4) Order 2003 (SI 2003/3079)

82

Children Act 1989, ss. 1(1)(b), 1(5), 2(1), 2(4), 2(7), 2(9), 8,
12(2), 58, 100
20, 24, 82–4, 99, 100–7, 125, 143, 144, 151
Children Act 2004, ss. 11(2)(a), 13(1), 18 and 19, 20, 21, 58
Children and Young Persons Act 1933

46, 64–6, 98
85–6, 98

Congenital Disabilities (Civil Liability) Act 1976

14

Domestic Violence, Crime and Victims Act 2004, s. 5

85

Family Law Reform Act 1969, ss. 1, 8(1)

41

Female Genital Mutilation Act 2003
Human Fertilisation and Embryology Act 1990, ss. 27, 28, 30
Human Rights Act 1998

117
82
19–20

Prohibition of Female Circumcision Act 1985

117

International Instruments

European Convention on Human Rights and Fundamental Freedoms,

1950, Articles 2, 3, 6, 8, 9, 13, 14
18, 19–20, 119, 131, 145, 165–8, 182
United Nations Convention on the Rights of the Child, 1989,
Articles 3, 6, 12, 18, 23, 24
2, 19–20, 48, 70, 82, 84, 120, 151, 182
Bills

NHS Redress Bill 2004, cls. 1, 3, 3(5), 6(3)
xviii

215–16


1
Parents, young children and healthcare law

Introduction
Being a parent brings with it manifold social, moral and legal responsibilities in relation to the physical, emotional and intellectual growth and development of the child as well as his or her safety, security, happiness and
well-being. The purpose of this book is to examine the role of parents in
caring for the health and well-being of young and dependent children. In
the chapters which follow there is an examination of the range of care
undertaken by parents from the everyday management of the health of
children, to the demands placed upon parents whose child has a lifethreatening illness or long-term disabilities, or whose future survival is
uncertain due to disabilities arising from prematurity, complications
during birth or accidental injury. In addition to undertaking an examination of the existing legal obligations imposed upon parents, this book
makes the argument for a new conceptual framework to govern the role of
parents in relation to the health of their children. Rather than argue for a
legal framework firmly grounded in the rights of young and dependent
children, as many commentators do, this book makes the argument for a
legal framework situated within the responsibilities of parents and healthcare professionals for the management of children’s health.

This book considers the responsibilities of parents and professionals in
relation to the health of children who, by virtue of their age, or mental and
physical impairments, are dependent upon others to ensure their health
and well-being. Whilst newborn (up to twenty-eight days old) and infant
(under the age of one) children are totally dependent upon others to interpret and meet their needs, at a young age – four or five, perhaps younger –
children will, to varying extents, contribute to maintenance of their
health and well-being. They will be able to take some responsibility for
their daily care: for example, washing their hands and cleaning their teeth.
1


2

parental resp onsibilit y

Furthermore, young children can be participants in their healthcare: for
example, reporting symptoms, taking medicine, sitting still whilst a wound
is tended or immunisation administered by injection. By this age, children
will be able to understand explanations given in appropriate language and
manner and thus can be involved in decisions about their healthcare before
they start school. Each child is different. Indeed, that this should be recognised by the law is a central argument of this book. The extent to which
each child wants, and is able, to be actively involved in their healthcare will
vary. Whilst we would not expect a child of this age to take responsibility,
we can demonstrate respect for each child as an individual person by
involving them, consulting them and considering their views on the
benefits and harms of what is proposed.1 The extent to which each child can
be involved is not only dependent upon the individual child but upon the
appropriateness of the explanations given, the willingness of the caring
adults to listen to the child and the circumstances in which such an
exchange takes place. The responsibility of parents for the healthcare of

their young and dependent child not only involves negotiations with
healthcare workers but further involves negotiation with the child and,
where the child is unable to express his or her views and feelings, careful
consideration of their child’s needs.
Whilst for most families care of their children remains a private matter,
it was the scandal of the ‘Bristol Heart Babies’ and the revelations about the
widespread retention of organs from deceased children which brought to
public attention the neglect of children’s healthcare services against the
concern of parents to secure the best possible healthcare for their children.
The evidence of parents to the Bristol Inquiry highlighted the responsibility taken by parents for securing professional help for their child’s condition and for working together with professionals to ensure that their child
received the best possible care. The revelations about the inadequate
quality of care provided at Bristol left many parents with feelings of guilt
arising from a sense that they had failed in their responsibility to their child.
The abject horror, the raw distress, of parents who subsequently discovered
1

Jane Fortin emphasises the distinction between children having the right to make decisions
and the right to participation and consultation recognised in Article 12(1) of the United
Nations Convention on the Rights of the Child, 1989. The latter recognises the importance
of involving the child in decisions, even when the child is not considered to be an
autonomous individual, without imposing responsibility for the decision upon the child:
Jane Fortin, Children’s Rights and the Developing Law, Reed Elsevier: London, 2003, at
pp. 19–20.


parents, young children and healthcare law

3

that parts of their children’s bodies were retained has been widely reported

in terms which demonstrate sympathetic appreciation of their plight. That
much of the attention has been directed at the retention of organs from
children’s bodies and less at the widespread common practice of retaining
the organs of adults can be better understood in light of the particular value
attributed to the child and the intimate relationship between children and
those caring for them in our society:2
Indisputably, over the past two, or at most three, decades childhood has
moved to the forefront of personal, political and academic agendas and
not solely in the West. The moving spirit of this process is extremely
complex and can be seen to involve an entanglement of factors such as:
a structural re-adjustment to time and mortality in the face of quickening social change; a re-evaluation and a re-positioning of personhood
given the disassembly of traditional categories of identity and
difference; a search for a moral centre or at least an anchor for trust in
response to popular routine cynicism; and an age-old desire to invest in
futures now rendered urgent.3

The majority of parents will be spared the responsibility of deciding
whether a very sick child should undergo life-threatening and potentially
life-saving surgery. Most will not be faced with the decision whether their
newborn babies should undergo separation surgery offering the chance of
survival to one but causing the inevitable death of the other, as did the
parents of Jodie and Mary, now known to be Gracie Rosie and Rosie Gracie
Attard.4 Courts have been asked to resolve disputes between parents and professionals concerning the healthcare of children, thereby establishing the
legal framework for the respective duties of parents and professionals with
regard to the healthcare needs of children. It is the premise of this book that
judgments about the health of children need to be informed by a full consideration of the difficult issues confronting parents and professionals as they
attempt to fulfil their responsibilities to children such as Jaymee Bowen,5
2

3

4

5

Jo Bridgeman, ‘When Systems Fail: Parents, Children and the Quality of Healthcare’ (2005) 58
Current Legal Problems, Jane Holder and Colm O’Cinneide (eds.), Oxford University Press:
Oxford, 183–213.
Chris Jenks, ‘Sociological Perspectives and Media Representations of Childhood’ in Julia Fionda
(ed.), Legal Concepts of Childhood, Hart: Oxford, 2001, 19–42, at p. 22.
Re A (Children) (Conjoined Twins: Surgical Separation) [2001] 2 WLR 480: considered in
chapters 4 and 5.
R v Cambridge District Health Authority, ex parte B [1995] 1 FLR 1055: considered in
chapter 2.


4

parental resp onsibilit y

Charlotte Wyatt,6 David Glass,7 Luke Winston-Jones8 and all those children
who remain anonymous in order to protect them and those caring for them
from, amongst other things, intrusive media attention. This chapter explains
the theoretical perspective from which the critique of the law governing the
provision of healthcare to babies, infants, young and dependent children is
undertaken. It ends with an outline of the chapters which follow to guide the
reader through the book and point them to chapters which may be of particular relevance or interest.

The legal construction of the young child
Perspectives on childhood

Although as Eva Kittay reminds us in Love’s Labor we are all ‘a mother’s
child’,9 when we refer to ‘child’ we are more commonly referring to a particular type of person – one who is currently at a stage of biological, intellectual and emotional immaturity. But what we mean by ‘child’ is not
simply a known given, rather, it is a cultural, social and legal construction.
Contemporary concepts of ‘child’ within England and Wales are culturally
and historically specific understandings of the characteristics, abilities,
values and priorities of the child and not those of an individual child at a
given time in relation to a specific issue. Current constructions of child
within law and policy have been influenced by a history of ideas from a
range of disciplines, including philosophy, sociology and psychology.10
As philosopher David Archard has pointed out, both the concept of
childhood11 (the understanding that children are different from adults)
6

7

8
9

10
11

Portsmouth NHS Trust v Wyatt and Wyatt, Southampton NHS Trust Intervening [2004] EWHC
2247 (7 October 2004); Portsmouth Hospitals NHS Trust v Wyatt and others [2005] EWHC 117
(Fam) (28 January 2005); Unreported [2005] EWCA Civ 185 (9 February 2005); Wyatt v
Portsmouth NHS Trust and Wyatt (By her Guardian) (No. 3) [2005] EWHC 693 (Fam) (21 April
2005); Wyatt and another v Portsmouth Hospital NHS and another [2005] EWCA Civ 1181 (12
October 2005); Re Wyatt [2005] EWHC 2293 (Fam) (21 October 2005); Re Wyatt [2006] EWHC
319 (23 February 2006): considered in chapter 5.
R v Portsmouth Hospitals NHS Trust, ex parte Glass, 50 BMLR 269 (web.lexis-nexis.com/professional/) and R v Portsmouth Hospitals NHS Trust, ex parte Glass [1999] 2 FLR 905; Glass v United
Kingdom [2004] 1 FLR 1019: considered in chapter 5.

Re L (Medical Treatment: Benefit) [2004] EWHC 2713 (Fam): considered in chapter 5.
Eva Feder Kittay, Love’s Labor: Essays on Women, Equality and Dependency, Routledge: New
York, 1999, at p. 23.
Alison Diduck, Law’s Families, LexisNexis UK: London, 2003, at p. 74.
As David Archard explains, this is not a singular concept, rather multiple, contradictory and inconsistent concepts co-exist: Children: Rights and Childhood, Routledge: London, 2004, at pp. 27–9.


parents, young children and healthcare law

5

and the specific conception of the particular ways in which children differ
from adults take the adult as the point of comparison. Children are notadults, ‘not-men’:12 dependent in contrast to adult independence; innocent
or ignorant in contrast to the experience of adulthood; irrational and
capricious rather than rational and reasoned. By their difference, their lack,
the child gives definition to the particular characteristics which identify an
individual as an adult.13
The ideal adult is equipped with certain cognitive capacities, is rational,
physically independent and autonomous, has a sense of identity, and is
conscious of her beliefs and desires, and thus able to make informed
free choices for which she can be held personally responsible . . .
Childhood is defined as that which lacks the capacities, skills and
powers of adulthood. To be a child is to be not yet an adult. Adulthood
is something which is gained, and although there may be losses in
leaving childhood behind, what is lost tends to be construed as that
which could never possibly serve the adult in an adult world.14

This lack is not permanent. Unlike ‘women, animals, madmen,
foreigners, slaves, patients and imbeciles’15 children have the potential
to develop their capacities: that is, the potential to develop the rationality and reason required of citizens to consent to authority and exercise

their rights.16 Indeed, the development by children of these capacities is
considered a normal, ordinary, expected and natural process. As Alan
Prout and Allison James explain, in the twentieth century psychological
approaches to child development dominated, with material impact
upon child-rearing practices, educational theory and the law.17 This
natural developmentalism resulted in a focus within sociology upon the
socialisation of the child,18 and rendered natural the confinement of
children to the private sphere whilst they develop the capacities and
12

13
16

17

Judith Hughes, ‘The Philosopher’s Child’ in Morwenna Griffiths and Margaret Whitford (eds.),
Feminist Perspectives in Philosophy, Macmillan: Hampshire 1988, 72–89, at p. 72, ‘in contrast
with which male philosophers have defined and valued themselves’.
14
15
Supra, n. 11, at p. 29.
Ibid., at p. 39.
Supra, n. 12, at p. 72.
Barbara Arneil, ‘Becoming versus Being: A Critical Analysis of the Child in Liberal Theory’ in
David Archard and Colin Macleod (eds.), The Moral and Political Status of Children, Oxford
University Press: Oxford, 2002, 70–94, at p. 70.
Alan Prout and Allison James, ‘A New Paradigm for the Sociology of Childhood? Provenance,
Promise and Problems’ in Allison James and Alan Prout (eds.), Constructing and Reconstructing
Childhood: Contemporary Issues in the Sociological Study of Childhood, Falmer Press: London,
18

1997, at p. 9.
Ibid., at p. 12.