Mental health counselling – What will the court decide?

According to statistics, nearly 1 in 10 children and young people are affected by a mental health problem. The good news is that there is now more awareness of this issue and a number of resources available to children and young people who may be suffering. However, what if parents cannot agree on counselling for their child?

Understandably, separation and divorce can be a difficult and anxious time for children. They might feel confused and believe they need to “pick sides”. They might also believe that the separation of their parents is “their fault” and might be feeling guilty.

Where does this leave you?

Decisions on a child attending counselling would fall under the umbrella of medical decisions. If you both agree, then great, they would attend counselling. If only one parent agrees, this does not necessarily mean that the counselling should go ahead and with such important decisions is not advisable to act unilaterally. This issue should be agreed upon by all of those with parental responsibility for the child(ren).

What is Parental Responsibility?

Under section 3 (1) of the Children Act 1989 “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

What application do I need to make?

In the absence consent from all those who hold parental responsibility, a parent may wish to apply to the court for a Specific Issue Order, for the court’s permission to enable them to make decisions about the child in the absence of the other parent’s consent.

The application that would need to be made comes under Section 8 of the Children Act 1989 and is for a specific issue application; to specifically address what is the best interests of the children’s education and medical matters. Within the proceedings evidence shall be put forward by both parents to set out how their proposal is in the children’s best interests.

However prior to making an application, the court would encourage the parties to engage in Alternative Dispute Resolution, to see if matters can be resolved. It may be that if you have spoken to a medical professional or a GP who highly recommends that the child or children attend counselling then you may be better assisted in your discussions with the other parent or in any application to the court.
Most importantly it would be best to understand why the other parent objects to the child(ren) attending counselling. Perhaps they need more information first or would like to speak to the counsellor themselves either on their own or jointly with you.

What will the court decide?

If matters relating to a child’s medical care are put before the Court, the matter then becomes a question of what is best for the child and not what is best for the parents. The Court’s primary consideration will be the needs of the child and will have regard to the Welfare Checklist (s.1 (3) CA 1989) when reaching their decisions. Arguably attending Counselling for the child might be in the child’s best interest and a vital resource to help them deal with their mental health issues. Conversely, it might not be necessary for the child to attend counselling and it may be considered intrusive and invasive given their age, characteristics and understanding. It is of course a balancing act.

Can I not just take them to counselling anyway?

However, if one parent has taken matters in their own hands and begins the process of making medical decisions without the other parents’ consent, that would not be perceived well by the court. In fact, if you choose to ignore the other parent’s views or objections, then they in turn could make an application to the family court to prevent you from making the child(ren) available for counselling. This also comes under Section 8 of the Children Act 1989 and would be for a prohibited steps order; to prohibit the child(ren) from attending counselling.

In all cases and at all times parents are strongly encouraged not just to communicate their wishes, but to co parent effectively for the best interests of their children.

If you need advice on this topic, or any other matters concerning children issues, please get in touch with our private child team at McAlister Family Law.