Our Father, who art in the Court of Session : comments on a Scottish Health Board’s parens patriae petition to authorise the medical treatment of ‘Child A’

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Brown, Jonathan (2026) Our Father, who art in the Court of Session : comments on a Scottish Health Board’s parens patriae petition to authorise the medical treatment of ‘Child A’. Scots Law Times. ISSN 0036-908X (In Press)

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Abstract

Comments on A Scottish Health Board, Petitioner [2025] CSOH 121, arguing that it was inappropriate for the Court of Session to exercise its parens patriae jurisdiction in the case of a child found to have capacity, as a matter of fact, in line with s.2 (4) of the Age of Legal Capacity (Scotland) Act 1991. Suggests that the Scots law relating to child capacity differs in some significant respects from the position which prevails in England and Wales (where capacity is assessed with reference to so-called 'Gillick competence' rather than a clear statute) and that under the relevant Scots law it is not the place of the courts to determine the 'best interests' of a child where said child has been found to have capacity in terms of s.2 (4). Further, seeks to establish that since (as a matter of policy) the 'best interests' criteria was expressly rejected in the formulation of the Adults with Incapacity (Scotland) Act 2000, the 'best interests' criterion utilised in Law Hospital NHS Trust v Lord Advocate is not appropriate for use in the post-2000 Act environment.

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Brown, Jonathan ORCID logoORCID: https://orcid.org/0000-0002-9198-9672;
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