‘Should the state administer a medical screening test on a child against the wishes of the family?’

In the landmark 2001 Irish Supreme Court Case, 'North Western Health Board v HW and CW (the PKU case)', the original judgment was to uphold the family’s wishes and not administer the test.

Dr Maebh Harding has revisited this influential judgment in Irish law, reimagining the case from the feminist perspective, ultimately providing an alternative route that could have been taken to give meaningful protection to the rights of children.

Dr Harding’s reworking highlights how individual children’s rights were understood by the Irish legal system at the time to be subservient to a policy need to promote the intact marital family unit.

It was not until 2015 that the Irish legal system finally gave express constitutional recognition to the rights of children and the need to ensure that their best interests are paramount over the prioritisation of the marital family structure.

The piece, available as part of a collection of re-imagined cases in the Northern/Irish Feminist Judgments Project (edited by Máiréad Enright, Julie McCandless and Aoife O'Donoghue), builds on Dr Harding’s previous work on children’s rights in Ireland.

Dr Donal Coffey, Senior Research Fellow at the Max Planck Institute for European Legal History, adds critical commentary of the reimagined judgment, placing the decision within its historical and constitutional context.

Dr Harding’s teaching on her popular LLB module ‘Child Law’ explores the appropriate balance between the interests of children and the wishes of parents within the English Family Justice System.