Outer House exercises parens patriae jurisdiction to authorise treatment of seriously ill children – against parents’ wishes

About this case:

• Citation:
  [2026] CSOH 76
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Three children, believed to be at risk of severe harm or death, were unable to receive treatment after their parents refused to give consent. The health boards responsible for the children’s care accordingly brought petitions, seeking that the Court of Session exercise its parens patriae jurisdiction to authorise treatment.

The petitions were heard by Lord Braid, with Scott Clair and Louise Jardine appearing for the first petitioner and Paul Reid KC for the second petitioner.

Risk of catastrophic consequences

A recent period of around a fortnight saw three petitions presented to the Court of Session for the exercise of its parens patriae jurisdiction. The jurisdiction, among other things, enables the court to authorise medical treatment in respect of children lacking capacity to consent where their parents have refused to do so. Two petitions – those concerning children known as child A and child B – were presented by Greater Glasgow Health Board, with the third, respecting child C, presented by Borders Health Board.

The parents of child A, a 13-year-old boy with severe, non-verbal autism suffering from an aggressive form of brain cancer, refused to authorise a blood transfusion in respect of their son, citing their religious beliefs as Jehovah’s Witnesses. The health board sought authority from the court to enable the child to undergo radiotherapy, chemotherapy and, if necessary over the course of his treatment, a blood transfusion. Without the former treatment, they said, the child would likely die from his cancer; and should that treatment go ahead without the latter authorisation, the resulting anaemia and loss of blood would likely also have “catastrophic” consequences.

Child B was likewise refused authorisation for a blood transfusion by his Jehovah’s Witness parents, despite the likely complications – worsened by sickle cell disease – of a necessary surgery planned for May 2026. In the case of child C, a bite to the wrist from the family dog required urgent inoculation against tetanus, against which the 10-year-old had not previously been vaccinated. Both of child C’s parents, however, refused to authorise vaccination.

Petitions for the exercise of the court’s parens patriae jurisdiction were accordingly brought by the health boards in each of the three cases, falling to be considered by the Outer House of the Court of Session.

Procedural cart must not drive welfare horse

Lord Braid began his decision by noting the relevant legal principles applicable to the exercise of the court’s parens patriae jurisdiction, as summarised by Lady Tait in A Scottish Health Board, petitioner (2026): “The Court of Session can authorise treatment for a person, including a child, who does not have capacity and who cannot consent to medical treatment. It may do so where such treatment is in the best interests of the person. Such authority has the same effect in law as consent provided by the person (or, in the case of a child, a parent). There is a strong presumption that it is in a person’s best interests to stay alive. Religious views of the child or parents are a factor which may be taken into account but that factor does not carry pre-eminent weight.”

As to the question of whether the child must be an orphan for the parens patriae jurisdiction to apply, he reasoned: “For my part, while that is a sufficient reason for the court to step in and give parental consent where that is required, I see no reason either in logic, or in law, why it should also be a necessary one. Where the welfare of the child demands that parental consent be given to a particular medical procedure which is necessary to avoid [the] death of, or serious harm to, the child, and parental consent is not available, then it matters not whether the reason for that non-availability is that no parent is alive, or (for whatever reason) alive but unable to give consent (for example, if they cannot be found), or simply refusing to give consent on religious, moral or life-choice grounds … [W]hen considering whether to exercise its parens patria jurisdiction, the court must carry out a balancing exercise, at the heart of which lies the welfare of the child, but where other considerations including the parents’ wishes and religious beliefs, and indeed their right to parental autonomy, must also be taken into account.”

Turning to the merits of the cases involving children A and B, Lord Braid noted: “[A]pplication of the foregoing principles readily led to the granting of orders permitting medical intervention … There was no real need to resort to the UNCRC requirements, which were in any event consistent with Scots law. In each case, stated bluntly, there was a risk of the child dying if the orders were not granted: it would be unsatisfactory if the Court of Session were not entitled to make an order in such circumstances on the basis that another form of procedure, in a lower court, might have been more appropriate. As I said recently in a different context, the procedural cart must not drive the welfare horse.”

As for child C, he continued: “[This] case was less straightforward, inasmuch as her parents actively opposed the making of any order and disputed the medical science underlying her request … In summary, they said that they choose to live in a way that prioritises simplicity, nature and mindful choices about what is put into their bodies. Wherever possible, they prefer to explore natural remedies and support the body in a holistic way. They believed the incident was low-risk, because their dog had not been eating piles of dirt or manure (where tetanus bacteria thrive); tetanus bacteria cannot live inside a dog’s mouth; the wound would have been flushed out by the body’s natural defence mechanisms; iodine, which was used to clean the wound superficially, would have killed the bacteria; and there was a possibility that C had developed immunity due to her lifestyle. Further, the vaccination may itself cause harm to C.”

Lord Braid concluded: “The ultimate problem was, as C’s mother herself stated, that it was impossible to know for certain whether C would develop tetanus or not. That being so, I proceeded on the basis of the medical information before me, which was that there was a … greater than negligible (but impossible to quantify) risk of tetanus, which if it came to pass would cause C harm ranging from serious illness to death. That being so, I reached the view that there was a material risk to C’s health such that some intervention by the court was justified. The final question to address was what that intervention should be … While neither the court nor the medical profession could ever say that anything was 100% safe, the overwhelming weight of the available evidence was that C was highly unlikely to suffer serious adverse effects from the two vaccinations which it was proposed to give her; and that the very small risk of minor side effects is outweighed by the much more serious harm she would suffer should she develop tetanus. I therefore concluded that it was in C’s interests to receive both the REVARIX and the IM TIG, and that she should receive them that day, such an order being both proportionate and necessary.”

Each of the three petitions for authorisation was accordingly granted.