Fair Hearing: Ex-parte Orders In Child Medical Emergencies

Parents have the fundamental right to raise their children and make decisions regarding their health, moral, social, and educational well-being without government interference, known as parental autonomy. However, when parents’ cultural and religious beliefs regarding a child’s health conflict with principles of natural justice, equity, and good conscience, the law permits government or court intervention in the best interest of the child.

For instance, if parents deny a child necessary medical interventions due to religious beliefs, as in the case of Jehovah’s Witnesses refusing blood transfusions, the government can intervene. Section 38 of the 1999 Constitution of Nigeria provides for freedom of thought, conscience, and religion, but Section 45(1)(b) allows for restricting this right to protect the rights and freedoms of others.

Fair hearing allows individuals to present evidence to support their case and discover evidence against them. Section 36 of the 1999 Constitution guarantees this right, yet Section 36(4)(a) permits courts or tribunals to exclude proceedings to protect minors’ welfare.

In child medical emergencies, which are serious conditions threatening a child’s life and requiring immediate medical attention, Nigeria’s laws and international commitments ensure the protection of children’s health. The African Union Charter on Rights and Welfare of the Child and the United Nations Convention on the Rights of the Child, which Nigeria has ratified, emphasize the right to health care services. Section 13 of the Child Rights Act mandates that the government and caregivers provide the best attainable state of health for children.

When a court deems it necessary, it can issue an ex-parte order, made without the other party’s knowledge, to provide immediate relief in emergencies. This order, backed by court authority, allows for immediate action, even if it temporarily infringes on the parent’s right to fair hearing.

In the case of Tega Esabunor & Anor. v. Tunde Faweya & 4 ors (2022), Tega, the child of Mrs. Esabunor, fell severely ill with an infection and anemia. Despite the urgent need for a blood transfusion, Tega’s Jehovah’s Witness parents refused due to their religious beliefs. The Lagos State Commissioner of Police obtained an emergency court order for the clinic to administer the transfusion, saving Tega’s life. Mrs. Esabunor’s subsequent motion to overturn the order was dismissed, and higher courts upheld the decision.

The Supreme Court ruled that in child-related matters, the child’s welfare and best interest take precedence over parental autonomy, especially in life-threatening situations. This ruling aligns with legal provisions protecting children’s well-being and serves as judicial authority on issuing ex-parte orders and limiting parental autonomy in medical emergencies.

Similarly, in Medical and Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Okonkwo, the Supreme Court held that a court order could override a parent’s refusal of blood transfusion for their child.

While some argue that parents should have complete autonomy over their child’s life and decisions, and that ex-parte orders deny fair hearing, the law prioritizes the child’s welfare and health. Any infringement on a child’s fundamental right to health care constitutes a crime.