Lawyers must fix the problems with gagging orders before it is too late
Children grow up so quickly. They have opinions from a young age and our society encourages children to be confident and to speak out. From age 14, they make decisions about which GCSE and A Level subjects they want to study, which will impact their careers and the rest of their lives.
But, at what point does the law recognise their opinions?
The first section of the Children Act 1989 says that, when the court is making a decision about a child’s upbringing, it will have regard to “the ascertainable wishes and feelings of the child concerned in light of his age and understanding”.
In a recent case decided by a High Court Judge, F v F  EWHC 2683 (Fam), Mrs Justice Theis ordered that two sisters aged 15 (“L”) and 11 (“M”) should be given the measles, mumps and rubella vaccine (MMR) against their wishes. The facts were as follows:
The Judge ordered that both girls should be vaccinated. In coming to her decision she weighed the following factors:
During the proceedings, the Judge met the children and described them as “charming, intelligent, articulate and thoughtful”. At first glance, this was a surprising decision, in particular given L’s age. The Judge made it clear, however, that the girls’ wishes and feelings was only one factor for the court to consider and, on this set of facts, it was not the overwhelming factor. In the Judge’s view, the girls lacked a balanced understanding of the issues involved. From a practical perspective, it will be interesting to see if the decision can be enforced and whether the girls will have the vaccination.
Separating parents can sometimes disagree about the upbringing of their children and Judges regularly see disputes about decisions relating to medical treatment, religion and schooling. Our law enshrines an obligation for the court to consider a child’s wishes and feelings, but the extent to which the child’s own view will be determinative will depend on the facts of the case. These are difficult cases and there will always be a careful and thorough investigation into the child’s expressed wishes.
For more information about the issues raised in this blog, please contact a member of the family team.
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