Court of Session issues guidance on parens patriae petitions for children’s medical treatment

[2026] CSOH 76 — Petitions of Greater Glasgow Health Board (First and Second) and Borders Health Board (Third)

Lord Braid has issued a single opinion addressing three petitions presented to the Court of Session within a period of around two weeks, each inviting the court to exercise its parens patriae jurisdiction to authorise medical treatment for a child whose parents had refused consent.

Three members of Ampersand appeared for the petitioning health boards, instructed in each case by the NHS Scotland Central Legal Office: Scott Clair for Greater Glasgow Health Board in respect of child A, Louise Jardine for Greater Glasgow Health Board in respect of child B, and Paul Reid KC for Borders Health Board in respect of child C.

The three cases

Child A was a 13-year-old boy with medulloblastoma, an aggressive brain cancer. He had severe non-verbal autism and was assessed as lacking capacity to make decisions about his healthcare. He and his parents are Jehovah’s Witnesses, and his parents had confirmed that they would not consent to the transfusion of primary blood components. Authority was sought for a course of radiotherapy followed by chemotherapy, and for transfusion if the treating clinician considered it necessary to avoid serious harm including death.

Child B was a 3-year-old requiring an open pyeloplasty for a pelvi-ureteric junction obstruction, whose surgery had been complicated by a subsequent diagnosis of sickle cell disease. His parents, also Jehovah’s Witnesses, refused consent to any blood products. Clinicians had used an alternative regimen to raise his haemoglobin above the surgical threshold, but could not rule transfusion out entirely, particularly in the event of post-operative complications.

Child C was a 10-year-old girl bitten by the family dog, who required tetanus-containing vaccination and immunoglobulin within four days of the injury. She had not previously been vaccinated. Her parents refused consent and, unlike in the first two cases, actively opposed the petition, disputing the medical evidence and addressing the court both orally and in writing.

In each case a curator ad litem was appointed on presentation of the petition, each curator supported the petition, and the court granted an order permitting medical intervention — though not, in every case, in the terms originally sought.

Points of wider significance

Lord Braid took the opportunity to address several matters going beyond the individual cases.

On the scope of the jurisdiction, he held that a child need not be an orphan for parens patriae to be engaged. Where the welfare of the child requires parental consent to a necessary procedure and that consent is not available, it does not matter whether the reason is that no parent is alive, that a parent cannot be found, or that a parent is refusing consent on religious, moral or life-choice grounds. In such circumstances the court is, in effect, “acting as a third parent.”

He emphasised that any such authorisation is an exception to parental autonomy and an interference by an organ of the state in family life. It must be a proportionate response to a material risk, and requires a balancing exercise at the heart of which lies the welfare of the child, but in which the parents’ wishes, religious beliefs and right to parental autonomy must also be weighed.

On the limits of the jurisdiction, the opinion is instructive. In child C’s case, the petition as presented had also sought authority for two further doses of vaccine at monthly intervals. The curator elicited from the treating clinician that those doses were not related to the acute episode but were intended to bring the child into the routine childhood vaccination schedule. The court observed that this would go considerably beyond the proper compass of an exception to parental autonomy; the jurisdiction enables the court to intervene in urgent situations, not to impose measures against parents’ wishes. Senior counsel for the health board confirmed at the interim hearing that the order was no longer sought in those terms.

On procedure, the opinion confirms that RCS 14.7 states in terms that a parens patriae petition shall not be intimated on the walls of court, and that it is not open to the court to waive that requirement. There is accordingly no need to seek dispensation. Open justice is served by the petitions being heard in open court, with the family’s privacy preserved by anonymity orders.

The opinion also addresses the interaction with the UNCRC (Incorporation) (Scotland) Act 2024, the court being satisfied that the UNCRC requirements were in any event consistent with Scots law.

Finally, in a postscript prompted by a recent academic suggestion that a child protection order should be sought in such cases, Lord Braid expressed no concluded view but observed that it had not struck him that a child protection order ought to have been sought in any of the three cases. There were no social work concerns; all were loving parents acting in accordance with what they perceived to be their child’s best interests; and it is not obvious that the statutory mechanism provides the same safeguards, including the power to seek a curator’s report and the hearing of applications in public. As Lord Braid put it, “the procedural cart must not drive the welfare horse.”

The opinion is available on the Scottish Courts and Tribunals Service website here.

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