Judging children's best interests: Centring bodily integrity

This article addresses how bodily integrity has been mobilised in the context of genital cutting of male infants and the extent to which the concept is taken into account in legal decision-making in the United Kingdom. While bioethicists have debated whether interventions on children's bodies are more appropriately determined on the basis of hypothetical consent or in the child's best interest, it is clear that in law the relevant test is whether interventions are in the child's best interest. As the issue of nonconsensual genital cutting of infants has become more contested, courts have been asked to adjudicate on the best interests of infants in situations where their caregivers disagree about procedures. Although this body of jurisprudence remains (surprisingly) small, in this article we argue that, while there are now discernible trends in such cases (e.g. deferring decision-making until the child has the requisite capacity to decide, engaging with certain human rights norms), too often judicial reasoning about a child's best interests remains largely empty of reasoned content, and in certain respects is regressing. Using the recent case of Re P to exemplify this logic, and drawing on our previous work advocating the value of embodied integrity, we argue that judges should adopt a more substantive framework of values in judging the child's corporeal and other interests in such cases. This would move best interests assessments beyond a mere formalistic exercise and lead to better reasoned legal judgements.

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Publication Details

Journal
Clinical Ethics
Published
2024-10-18
DOI
https://doi.org/10.1177/14777509241291708
Citations
1
Primary Topic
Ethics and Legal Issues in Pediatric Healthcare
Type
article
Field-Weighted Citation Impact
1.11
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article

Judging children's best interests: Centring bodily integrity

Marie Fox, Michael Thomson
1 citations
Clinical Ethics
Ethics and Legal Issues in Pediatric Healthcare
1.11
article

Judging children's best interests: Centring bodily integrity

Marie Fox, Michael Thomson
article en
1 citations

Abstract

This article addresses how bodily integrity has been mobilised in the context of genital cutting of male infants and the extent to which the concept is taken into account in legal decision-making in the United Kingdom. While bioethicists have debated whether interventions on children's bodies are more appropriately determined on the basis of hypothetical consent or in the child's best interest, it is clear that in law the relevant test is whether interventions are in the child's best interest. As the issue of nonconsensual genital cutting of infants has become more contested, courts have been asked to adjudicate on the best interests of infants in situations where their caregivers disagree about procedures. Although this body of jurisprudence remains (surprisingly) small, in this article we argue that, while there are now discernible trends in such cases (e.g. deferring decision-making until the child has the requisite capacity to decide, engaging with certain human rights norms), too often judicial reasoning about a child's best interests remains largely empty of reasoned content, and in certain respects is regressing. Using the recent case of Re P to exemplify this logic, and drawing on our previous work advocating the value of embodied integrity, we argue that judges should adopt a more substantive framework of values in judging the child's corporeal and other interests in such cases. This would move best interests assessments beyond a mere formalistic exercise and lead to better reasoned legal judgements.

Clinical EthicsVol. 19(4)
University of Technology Sydney (AU), University of Leeds (GB), University of Liverpool (GB)
Peace, Justice and strong institutions
Openalex Percentile: Top 17%
Ethics and Legal Issues in Pediatric Healthcare
1.11
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Judging children's best interests: Centring bodily integrity — Marie Fox, Michael Thomson · Clinical Ethics (2024) | TGRS Research Map | TGRS