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Good Family Judges Know When Not to Intervene

The essence of a good judge, particularly in family cases, often lies in knowing when not to intervene. In one case, a judge ruled that a decision as to whether a two-year-old boy should undergo surgery to have a titanium plate inserted in his skull should be taken not by him but by those who are entrusted with his care.

The little boy had been taken to hospital with a life-threatening clot on his brain. A neurosurgeon operated to save his life and part of his skull had to be removed to relieve pressure on his brain. He had since made a remarkable recovery but part of his brain was only protected by the soft skin of his scalp and, without the insertion of a plate, he might have to wear a helmet as he grew up.

Lawyers representing a local authority and an NHS trust asked the judge to sanction the operation. It was accepted that the procedure would not be without risks, including an estimated 15 per cent chance of infection, a five per cent chance of permanent brain damage and a one to two percent chance of death.

In rejecting the application, the judge acknowledged that he did not necessarily know best. He noted that there was no immediate medical need for the operation, the benefits of which would be primarily cosmetic and psychological. There was currently no clear-cut answer as to the right medical option and the decision was so important that it should be left to those entrusted with the boy’s long-term care.

The boy had been placed in specialist foster care after his discharge from hospital and a care hearing was scheduled at which a judge would decide whether he should live with a member of his family or be adopted. The judge at that hearing would also consider where responsibility, if any, lay for the boy’s injury.

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