The capacity of children to make legal decisions

The child’s wishes and decisions in the family courts

It was long thought that a child lacked the legal capacity to give valid consent in the law regarding decisions such as living arrangements, contracts, or consent to medical/surgical/dental procedures. Therefore, the capacity to make decisions and act in the child’s best interest was vested in their parent or guardian. These parental powers existed until the child attained the majority.

The current approach views parental powers in a different way: they establish that these are effective only so long as they are needed for the protection of the person and property of the child. Therefore, it is no longer the accepted rule that children remain under parental control until they are of a certain age. At some point in the child’s life, the parental right yields to the child’s right to make a decision for themselves. However, this is seen by the courts as an incremental process, in the course of which, the child’s independence and ability to make decisions grow, while the extent of the parental responsibilities diminishes.

The extent to which the child’s decisions are upheld as if they were an adult depends on a number of factors, such as the child’s age and understanding, as well as the matter in issue and the severity of the consequences of the decision. The principle was established by Gillick v West Norfolk & Wisbech Area Health Authority (1986). The ruling, in this case, provides that the child’s voice is listened to in court when they reach a sufficient understanding to be capable of making up their own mind. Whether a child is so capable is a question of fact.

In practice

The child’s ability to make decisions for themselves relates to a number of different situations. The main areas where issues often arise, however, are connected with consent or refusal of medical or psychiatric treatment.

Someone aged 16 or over is presumed to be capable of giving valid consent to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to their person.

A young person under 16 may have the capacity to consent – or refuse – such treatment, depending on their maturity and ability to understand what is involved. In deciding whether a child has capacity to consent, it must be determined that they can understand the nature, purpose and possible consequences of investigations or treatments proposed, as well as the consequences of not having treatment. Only if they are able to understand, retain, use and weigh this information, and communicate their decision to others can they provide valid consent.

Maturity and understanding are assessed on an individual basis and with regard to the complexity and importance of the decision to be made: a child who has the capacity to consent to straightforward, relatively risk-free treatment may not necessarily have the capacity to consent to complex treatment involving high risks or serious consequences. The capacity to consent can also be affected by their physical and emotional development and by changes in their health and treatment.

If the child is found to have the required level of understanding, their decision could be upheld even if the parents’ wishes are different. After the court’s decision to uphold the child’s view, the parents have no authority to contradict that decision or force their child into the opposite course of action. As Lord Scarman said in the Gillick case: ‘Parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.’

Assessing whether a child is Gillick competent

When the court is assessing whether a child is Gillick competent, it takes into account the specific factors of the case including the age of the person in question and the complexity of the issues being considered. The court will look at whether the child has, through their age and life experience, a sufficient understanding to make an informed decision.

Courts have been more likely to uphold a decision of a child consenting to a specific medical treatment; there is a higher reluctance for a court to uphold a child’s decision not to undergo the same or similar treatment.

If a child refuses treatment, which may lead to their death or a severe permanent injury, their decision can be overruled by the Court of Protection (the legal body that oversees the operation of the Mental Capacity Act 2005). The parents of a young person who has refused treatment may consent for them, but it’s usually thought best to go through the courts in this situation.