Who should have the ultimate say over a child's medical treatment? A series of high-profile withdrawal of care cases have highlighted the full extent of the courts’ authority to make decisions on behalf of children in the medical context. In both the Charlie Gard and Alfie Evans litigation, the courts have made clear that they have the power to make medical decisions for children at the point that child's welfare is engaged. All courts involved in both cases affirmed the orthodox position that the threshold for judicial intervention in disputes about medical care of children is the welfare of the child, often referred to as the “best interests” approach (referring to both the threshold and the test applied to determine what should be done). While no new point of law has been decided in these cases, they are important in that they confirm just how expansive the inherent jurisdiction of the courts in such cases is, extending as far as to prevent parents from removing their child to another jurisdiction to pursue alternative treatment. In this paper, we argue that the current threshold for intervention is too low. We argue that prima facie decision-making authority about a child's medical care should rest with the child's parents, affording them the ability to choose between the range of medical options available. This authority should yield only where the parents’ decision carries a “serious risk of significant harm” to the child, at which point the court then has the authority to intervene. When it does so, the court should then apply the best interests approach.

With one in six people over 80 now suffering from dementia, advance directives provide an important means of empowerment. Upholding directives in the context of dementia, however, raises extra challenges, given the potential for the directive to conflict with an assessment of what is in the person's current best interests. Given the profound harm that tying a person with dementia to their previous wishes can do, it is essential that we have sufficient safeguards in place to ensure that we only uphold such directives where we can be sure they are truly autonomous and are intended to apply to the situation at hand-safeguards which are at present, severely lacking. This article will consider various mechanisms by which safeguards can be built into the legal regime to ensure that the original decision is autonomous, including making it mandatory for the person to undergo a consultation with a healthcare professional, which would involve a contemporaneous capacity assessment. Clinicians must also be confident that the directive applies to the situation at hand. Introducing formalities, including a standardised (though not mandatory) proforma, may help to enhance specificity about when the directive is triggered, and to what treatments it relates, to enable clinicians to better assess the directive's applicability. A national registry for advance directives might also be beneficial. It will be argued that health care professionals will have to play a much greater role in the drafting and registering of advance directives, if we are to feel comfortable in upholding them.

Recently, the English courts have dealt with a number high-profile, emotive disputes over the care of very ill children, including Charlie Gard, Alfie Evans, and Tafida Raqeeb. It is perhaps fair to say such cases have become a regular feature of the courts in England. But is the situation similar in other jurisdictions? If not, are there lessons to be learned from these jurisdictions that do not seem to need to call on judges to resolve these otherwise intractable disputes? We argue that many of the differences we see between jurisdictions derive from cultural and social differences manifesting in both the legal rules in place, and how the various parties interact with, and defer to, one another. We further argue that while recourse to the courts is undesirable in many ways, it is also indicative of a society that permits difference of views and provides for these differences to be considered in a public manner following clear procedural and precedential rules. These are the hallmarks of a liberal democracy that allows for pluralism of values, while still remaining committed to protecting the most vulnerable parties in these disputes—children facing life-limiting conditions.

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In Raqeeb v Barts NHS Foundation Trust, the latest of a number of cases concerning whether a child can travel abroad for treatment that doctors in the UK do not consider to be in their best interests, the High Court held that the hospital had acted unlawfully by failing to consider the child's rights under EU law when refusing to allow her to travel. Although this derogation could be justified on public policy grounds, as such treatment was, on the facts, in her best interests, no further interference with her rights was justified. In making this finding, the court recognised the 'stress' that such a case placed on the best interests test, lending weight to the argument for moving instead to a risk of significant harm threshold for judicial intervention in parental decisions, which better accounts for legitimate differences of value and strikes a better balance under Article 8 ECHR.