Monday 26 February 2018

Legal Matters: Can I stop this operation?

My ex-wife wants to go ahead with a medical procedure for our 13-year-old daughter that I don't agree is necessary at all. It's causing a lot of conflict between us and my wife is refusing to see my point of view. As the dad, is there anything I can do to stop this operation going ahead?

Mary Kirwan, Barrister, replies:

Joint parenting after a divorce can be difficult and it's not easy for the parents to see eye to eye on everything.

It can range from the trivial to the profound. Even celebs aren't immune. Peter Andre and Jordan (pictured below with Princess) had a huge public spat because he decided to give their two children, Princess Tiaamii and Junior, a haircut she didn't agree with.

But medical treatment is obviously much more serious. This is reflected in the fact that there is a lot of legislation governing the area, covering consent and invasive treatment of minors.

Section 23 of the Non Fatal Offences Against the Person Act 1997 covers all medical, surgical and dental treatment.

The basic rule allowing for treatment to go ahead when it comes to minors is as follows. If the child is over 16 then consent for treatment must be obtained from them. If they are under 16 then parental consent must be sought otherwise an offence is committed.

Because your daughter is 13 it's fairly clear that parental consent will be required. The question is then, which parent can consent?

Where the parents are divorced, either parent can consent to medical treatment for their child because in most cases both parents remain the child's legal guardian.

The balance of opinion, when parents who are joint guardians are in dispute, is that a decision may be made by the health authorities. The medical authorities will look at the proposed medical treatment and see if it's in the best interests of the child. They will then look at which of the parents' views best match this treatment approach.

So an unresolved dispute between the two of you may ultimately be arbitrated by doctors.

Mary Kirwan BL is a barrister and can be contacted at


The piece (What are my Rights 24/10/2011) conveyed the impression that the health authorities and medical profession would have the final say in deciding the treatment of a teenager, who lacks the capacity to consent, where divorced or separated parents disagree on a course of treatment.

While the health authorities and medical profession may have a role in helping parents and the child decide the best course of treatment, and the HSE has guidelines on how to deal with such disputes (, ultimately the decision on treatment lies with the parents.

The special position of the family is recognised by Article 41 of the Irish Constitution. The presumption exists that the decision of the parent is in the best interest of the child unless over-ruled by the courts.

If either parent is unhappy with a proposed medical treatment ultimately they have a right of access to the courts to seek direction as neither parent has the right to act alone.

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