Family Law: When can a parent’s right to make decisions about their children’s welfare be interfered with by the State?

The recent media coverage and newspaper articles about Ashya King have raised an interesting debate.  When can a parent's right to make decisions about their children's welfare be interfered with by the State?  As detailed in our previous blog, parental rights and responsibilities extend to making many decisions about different aspects of your child's wellbeing.  What happens when these clash with the views of the State on what is in the best interests of your child? 

Ashya King is a 5 year old boy who is suffering from a brain tumour.  His parents decided to remove him from Southampton General Hospital and travel to Spain.   Their explanation is that they are seeking treatment for their son which is not available on the NHS but may be available to him in the Czech Republic.  Their 'disappearance' with their son started a major search operation and resulted in a European Arrest Warrant being issued, on the basis that they had neglected their son, by apparently removing him from hospital without the agreement of the medical professionals.   

The case of Ashya King is a rare one.  However, it can be the case that a parent's ability to make decisions about their children is restricted.  In Scotland this can be done by a local Court granting a Child Protection Order or by a Children's Panel making a Compulsory Supervision Order.

A Child Protection Order (CPO) is a Court Order which is sought by a Social Worker from your Local Authority (Council).  A Sheriff must decide whether the order sought is necessary for the immediate protection of a child.  A Child Protection Order can prevent parents removing their child from a hospital or from some other place of safety.  It can stipulate who a child is to live with.  As it interferes with a parent's parental rights and responsibilities, it will only be granted if the alleged risk to a child is immediate.  A CPO will only last for three days.

A Compulsory Supervision Order (CSO) is an order which can be made by a Children's Hearing.  Children's Hearings are made up of three individuals who are not legally qualified.  Nevertheless, the orders made are legally binding.  A CSO can last for up to a year.  It can stipulate where a child is to live, whom they are to have contact with and whether the local authority can consent to medical treatment on behalf of a child.

If Ashya King were in hospital in Scotland and the Social Work Department/Local Authority were made aware of his parents' intention to remove him it is likely that one of the above orders (if not both of them) would have been sought to prevent the parents from removingthe child.  However, without advance warning it is unlikely that anything could have been done to stop them.  In Scotland they would both have PRRs, as they are married, and therefore without any orders they can make the decisions they feel is in their child's best interests.

If you need any advice on any issue concerning parental rights and responsibilities or Social Work involvement with your child, get in touch with our experienced Family Law Teams (Edinburgh, Dalkeith, Musselburgh, Bathgate).