What happens if access to your child’s medical records is disputed post-separation or divorce?

The Medical Defence Union (MDU) recently revealed that GP practices frequently receive requests from estranged parents for disclosure of their child’s medical records which are disputed by the former partner.

Health and care records are highly confidential and the MDU has stressed the importance of medical professionals handling these requests sensitively and correctly. It's vital that doctors are aware of the law and their rights and responsibilities when responding to such requests.

But as a parent, where do you stand if your former partner disputes your right to see your child’s medical records?

Here we explore who has the right to seek access to such medical records, where parental responsibility lies, what happens if access is disputed and when a child’s consent needs to be taken into consideration.

Following separation who has the right to seek access to a child’s medical records?

According to the General Medical Council, medical professionals should let parents access their child’s medical records if the child or young person agrees; or in circumstances where it isn’t appropriate or possible to take the child’s view on providing access, consent will typically be given if doing so does not go against the child’s best interests.

If the records contain information given by the child or young person in confidence, doctors should not normally disclose the information without their consent.

Crucially, the Council’s guidelines also state that divorce or separation does not affect parental responsibility and that doctors should allow both parents reasonable access to their children's health records.  

Children’s consent to sharing medical records

If you are in a situation where your former partner is disputing access to your child’s medical records, the child’s right to consent to sharing sensitive and confidential information may also be raised.

The NHS states that a person with parental responsibility will “usually be entitled to access the records of a child who is aged 12 or younger” stating that children above this age can be considered to have capacity to give or refuse consent. However, British Medical Association guidance also states that “every reasonable effort must be made to encourage the child to involve parents or guardians.”

Of course, each matter is unique to the personal circumstance of the child and the parents and guardians but in its ‘0-18 years’ reference guide, the General Medical Council offers comprehensive guidance for doctors to ensure they make decisions that are ‘ethical, lawful and for the good of children and young people from birth to their 18th birthday.’

Who has parental responsibility?

Parental responsibility is defined in the Children Act 1989 as “all the rights, duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child and the child’s property”.

A mother automatically has parental responsibility for her child from birth. A father usually has parental responsibility if he’s either married to the child’s mother or listed on the birth certificate – however, there are some geographical and situational differences.

Births registered in England and Wales 

In England and Wales, if the parents of a child are married when the child is born, or if they’ve jointly adopted a child, both have parental responsibility. An unmarried father will have parental responsibility if named on the birth certificate. Fathers can also apply for parental responsibility. They both keep parental responsibility if they later divorce.

Births registered outside the UK

If a child is born overseas and comes to live in the UK, parental responsibility depends on the UK country they’re now living in.

Unmarried parents

An unmarried father can get parental responsibility for his child in 1 of 3 ways:

            •          jointly registering the birth of the child with the mother;

            •          getting a parental responsibility agreement with the mother; or

            •          getting a parental responsibility order from a court.

Same-sex parents

Civil partners: same-sex partners will both have parental responsibility if they were civil partners or married at the time of the treatment, e.g. donor insemination or fertility treatment.

Non-civil partners: for same-sex partners who are not civil partners or married, the second parent can get parental responsibility by either applying for parental responsibility if a parental agreement was made, or becoming a civil partner of the other parent and making a parental responsibility agreement or jointly registering the birth.

Adoptive parents

The parents named on a child's adoption certificate acquire parental responsibility regardless of their marital status. Anyone who had parental responsibility prior to the child's adoption has their parental responsibility removed upon adoption.

What happens if access is disputed?

If a parent asks a GP practice for access to a child’s medical records, where there is no obligation to seek consent from the other parent or to tell them about the request, they may still take action to make the other parent aware of the request.

It is the priority of GPs to act in the best interests of the child at all times and if they believe there to be any doubt that the person making the request has parental responsibility for the child, they may ask for proof – a copy of the child's birth certificate, or a letter from the person's solicitor confirming their parental responsibility status.

For example, if you are disputing the right to access because parental responsibility of your ex-partner has been removed by the court, you may be asked to provide evidence of this.  

Throughout the course of a divorce or separation, situations involving to children tend to be highly emotionally charged. When a medical or health issue is involved, this is naturally heightened further.

At Ribet Myles, we work with closely with divorced parents to ensure that any matters relating to children are handled smoothly and all parties – including little ones – feel as comfortable as possible.

To find out more about us and the work that we do click here. You can get in touch with us and speak to a member of our team here.