Today, parents and guardians often have differing opinions on the best medical care for their children, especially with the abundance of information accessible to them.

The starting point

Parents or guardians typically have the responsibility to decide, or help children decide, on important matters affecting their child. One important matter for guardians to determine is non-routine medical treatment for children. Routine treatments, like treating a cold or rash, can usually be decided by the caregiving parent alone. However, more serious treatments requiring surgery or hospitalisation would fall under non-routine care.

Do children have a say?

The level of involvement a child has in decision-making depends on their age and maturity, with an increasing level of autonomy as they get older. Children over 16 can independently consent to or refuse medical treatment, and their decision cannot be overruled by a guardian.

Involving the court

When parents or guardians cannot agree on medical treatment, they may need to seek court intervention. In such cases, the Family Court prioritises the child's welfare and best interests. There are a range of principles to be considered by the court, relating to a child’s welfare and best interests. Most recently those principles have been extended to provide for a child to be given a reasonable opportunity to participate in any decision affecting them. The inclusion of this principle signifies the increasing role children are to have in matters relating to them. The court will appoint a lawyer for the child to convey their views, which must be taken into account. The weight placed on those views will be a matter for the Judge, depending on the child’s age and maturity.

In addition to the child’s views, and parties’ evidence, the court will also take into account expert medical evidence.

Previous issues determined by the court

While each case is unique, past court decisions offer guidance. For example, the High Court recently upheld a Family Court decision to remove a child's tonsils based on medical evidence.

The courts have also determined disputes between guardians about the following medical issues:

  • Immunisation
  • Gender reassignment
  • Circumcision
  • Blood transfusions
  • Surgical procedures
  • Dental treatment
  • Treatment for conditions or disorders, such as ADHD or an eating disorder