The child’s wishes and decisions in the family courts

It was for long thought that a child lacked legal capacity to give valid consent or carry out any other legally effective act. Therefore, the capacity to make decisions and act in the child’s best interest was vested in his parent or guardian. These parental powers existed until the child attained majority.

The current approach takes the mentioned parental powers from a different position establishing that those are of effect 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 certain age. At some point of the child’s life the parental right yields to the child’s right to make decision for himself. 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 such of persons of full age depend 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 the case of Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112. The case authority provides that the child’s voice is heard and listened to in court, when he reaches a sufficient understanding to be capable of making up his own mind. Whether a child is so capable has been held to be a question of fact.

In practice

The child’s ability to make decisions for themselves relates to living arrangements, consenting to contracts, making a will or in some cases marrying. However, the main areas where issues often arise are connected with consent or refusal to consent a medical or psychiatric treatment.

In principle, it is provided that the consent of a minor, who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, is as effective as it would be if he were of full age.  Where a minor has by virtue of this rule given an informed legal consent to a particular treatment it is not necessary for consent from his parent or guardian to also be obtained. In practice, issues arise when a decision is taken by a child, even below that age, and a medical treatment has been performed or is being considered but the parent’s views on the matter are in direct contradiction to decision of the child.

The principle for medical or psychiatric consent

In general, the courts consider whether the child in question has a sufficient understanding to make an informed decision about a medical or psychiatric treatment. This decision could in turn be consenting to a procedure or refusing to agree to such.

If the child is found to have the required level of understanding, his decision could be upheld even if the parent’s wishes are different. Further, 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.

The practice further proves that courts are more likely to uphold a decision of a child consenting to a specific medical treatment. On the other hand, there is a higher reluctance for a court to uphold a decision not to undergo the same or similar treatment.

However, it is important to note that no minor, can by refusing consent override a consent given by a person with parental authority or by the court. Nevertheless, such refusal will be a relevant matter to be taken into account by the court or parent in deciding whether to give or withhold consent.

Assessing whether a child is Gillick competent

Whenever 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 issues which are considered. Further, the court looks at whether the child has through his age and life experience a sufficient understanding to make an informed decision. Therefore, the age of the child is of significant importance.

If a same question is considered for two children of different ages. If the child is 17 years of age it is more likely for his decision to be upheld, while a child’s wishes of 14 would be taken into account but given less weight than in the example above. This again emphasises the incremental change of the child to becoming an adult, whose decisions are upheld as being made by a person of full age.