Children’s rights legal digest – December 2021

This year we have dedicated four issues of our children’s rights legal digest to landmark judgments that have strengthened the protection of children’s rights in England. This last one, the ‘Gillick judgment’ was a successful appeal brought by the Department of Health and Social Security (as the Department of Health and Social Care was then known). It concerned the lawfulness of doctors and other health practitioners providing children under the age of 16 with contraceptive advice and treatment without their parents’ knowledge or consent. In one of the most famous children’s rights judgments in our jurisdiction, which pertains to this day, the House of Lords held that parental authority dwindles as a child’s understanding grows. Further, parental responsibility exists for the benefit of the child; it is not indicative of parental control or ownership of children. From this judgment, the concept of ‘Gillick capacity’ and a ‘Gillick-competent child’ was born.

Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security

In December 1980, the Department of Health and Social Security (DHSS; this is now the Department of Health and Social Care) published revised guidance on contraceptive advice and treatment, which contained a dedicated section entitled “The Young”. This noted “widespread concern about counselling and treatment for children under 16”, and the need for “special care” so as “not to undermine parental responsibility and family stability”. At the same time, the guidance explicitly recognised the importance of confidentiality and the risks associated with abandoning it for children under 16, such as discouraging them from seeking professional advice, and increasing their exposure to pregnancy, sexually-transmitted diseases and other harms. These risks were seen as particularly concerning for those children and young people who were unable to receive guidance and support from their parents, including those who were in care. In such circumstances, the guidance stated that “the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor”.

For children aged 16 and over, Section 8 of the Family Law Reform Act 1969 provided the right to consent to medical advice, examination and treatment as if they were of full age. (This legislation remains in force today).

In January 1981, Mrs Victoria Gillick, a Roman Catholic and then a mother of four girls under the age of 16 (she was to have a fifth daughter during the period of litigation), wrote to her local health authority asking for a written assurance that “in no circumstances will any of my daughters … be given contraceptive or abortion treatment whilst they are under 16”. Two months later, she wrote a letter which forbade medical staff from her local health authority from giving such treatment to any of her daughters. The following summer, Mrs Gillick commenced legal proceedings against the health authority and the DHSS, seeking a declaration from the court that the guidance was unlawful and that it would, or could, adversely affect the welfare of her children and/or the rights of Mrs Gillick as their parent.

Mrs Gillick succeeded in the Court of Appeal, which handed down its judgment in 1984. The following year, the DHSS successfully appealed to the House of Lords, which was then the UK’s highest court (since replaced by the Supreme Court).

Lord Fraser gave the leading speech, in which he considered three main issues:

  • The legal capacity of girls under the age of 16 to consent to contraceptive advice, examination and treatment;
  • Parents’ rights and duties in respect of the medical treatment of their children; and
  • The question of criminal liability for doctors providing contraceptive advice or treatment to girls under the age of 16.

Capacity of girls under 16 to give consent

Lord Fraser examined a variety of provisions in law at the time and concluded there was “no statutory provision which compels me to hold that a girl under the age of 16 lacks the legal capacity to consent to contraceptive advice, examination and treatment provided that she had sufficient understanding and intelligence to know what they involve”. He explained that, were the arguments made by Mrs Gillick’s legal team to be accepted, children under the age of 16 would be considered unable to consent to any treatment of their own body, however trivial, and even extending to having a broken arm put in plaster.

Parents’ rights and duties

Lord Fraser rejected the lower court’s conclusion that parents had complete control of a child until they reached the age of majority. He held:

“It is, in my view, contrary to the ordinary experience of mankind, at least in Western Europe in the present century, to say that a child or a young person remains in fact under the complete control of his parents until he attains the definite age of majority, now 18 in the United Kingdom, and that on attaining that age he suddenly acquires independence. In practice most wise parents relax their control gradually as the child develops and encourage him or her to become increasingly independent. Moreover, the degree of parental control actually exercised over a particular child does in practice vary considerably according to his understanding and intelligence and it would, in my opinion, be unrealistic for the courts not to recognise these facts.”

One of the cases relied upon by the Court of Appeal, which had found in Mrs Gillick’s favour, came from 1883 (the Agar-Ellis case) and supported the patriarchal control of children. In the House of Lords, Lord Fraser quoted Lord Denning’s fierce rejection of the 1883 ruling, in a case decided in 1969 (the Hewer v Bryant case). Lord Denning had, in that case, memorably referred to the ‘dwindling right’ of parents:

“The common law can, and should, keep pace with the times. It should declare … that the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”

In the Gillick decision, Lord Fraser said he agreed “with every word” of Lord Denning above, and stated the 1883 ruling was “so out of line with present day views that it should no longer be treated as having any authority. I regard it as a historical curiosity”. Lord Fraser then set out how doctors (and others) should discharge their clinical discretion in respect of children under the age of 16. These became known as the ‘Fraser guidelines’:

“But there may well be cases, and I think there will be some cases, where the girl refuses either to tell the parents herself or to permit the doctor to do so and in such cases, the doctor will, in my opinion, be justified in proceeding without the parents’ consent or even knowledge provided he is satisfied on the following matters: (1) that the girl (although under 16 years of age) will understand his advice; (2) that he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice; (3) that she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment; (4) that unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer; (5) that her best interests require him to give her contraceptive advice, treatment or both without the parental consent.”

Lord Scarman, one of the House of Lords judges in the Gillick case, crucially held that:

“… as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.” 

As with Lord Fraser, Lord Scarman was scathing about the “horrendous” decision in 1883 and said that that ruling was “rightly remaindered to the history books”. Having reviewed case law to find the “true principle” behind children’s and parents’ (legal) relationships, Lord Scarman concluded: “parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child”. He also said:

“The law relating to parent and child is concerned with the problems of the growth and maturity of the human personality. If the law should impose upon the process of “growing up” fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change.” 

In response to worries that the ruling would put too much discretion into the hands of doctors, and result in uncertainty, Lord Scarman said: “The uncertainty is the price which has to be paid to keep the law in line with social experience, which is that many girls are fully able to make sensible decisions about many matters before they reach the age of 16”.

Question of doctors’ criminal liability

Lord Fraser held that doctors who “honestly intend to act in the best interests of the girl” would be unlikely to be committing an offence by providing contraceptive advice and treatment to a girl under 16 without the knowledge or consent of her parent.

The impact of the judgment

The ‘Gillick ruling’ has had wide-ranging impact in confirming the integrity and status of children as individual human beings whose evolving capacities are recognised in law. The decision was delivered a few years before the Convention on the Rights of the Child was adopted by the United Nations (in 1989) but reflected key provisions of this ground-breaking children’s rights treaty, including:

  • Article 5 – the responsibilities, rights and duties of parents (and wider family members) to provide appropriate direction and guidance to children in line with the child’s evolving capacities;
  • Article 12 – every child’s right to express their views freely, and to have these views given due weight in accordance with their age and maturity;
  • Article 18 – recognition that parents have the primary responsibility for the upbringing and development of the child, and that best interests of the child are their basic concern. (This Article also requires governments to support parents). 

Also coming ahead of the Children Act 1989, when the concept of ‘parental responsibility’ replaced the Children Act 1975’s ‘parental rights and duties’, this was an incredibly important judgment in setting the perimeters of parental authority. The UK’s highest court made it crystal clear that the notion of children being the property of their parents was consigned to the history books.

The enduring effect of this landmark judgment is that children are recognised in law as having the potential to understand the widest range of matters affecting them, and to influence and make decisions accordingly. There is no minimum age for this.

Evolving capacities as a concept acknowledges that there is no single point in time when human beings can be said to have the necessary reserve of understanding, wisdom and skill to make decisions and take action for themselves, alone and with others. Capacity depends on the individual child, their prior experiences, their upbringing and social environment, as well as the matter in hand. As an alternative to fixed stages of development, the concept reflects the richness of human development and firmly rejects the archaic view that infancy and early childhood are periods of deficiency and incompetence.

Primary legislation – the Family Law Reform Act 1969 – continues to provide the right to consent to surgical, medical or dental treatment from the age of 16. Before this age, a child’s capacity to consent depends on their individual understanding of the matter in hand – what the decision and/or treatment entails, and the potential immediate and long-term consequences. Together with many other laws, and the UK’s ratification of the Convention on the Rights of the Child in 1991, the ‘Gillick ruling’ undoubtedly fostered a paradigm shift in respect for children as human beings in their own right, rather than appendages of their parents.

Although it concerned children’s consent to contraceptive advice and treatment, this House of Lords judgment has had wide-ranging impact across health and social work where it is common for ‘Gillick competence’ to be invoked to support a child’s participation in processes and decision-making and, alternatively and arguably less frequently, to account for their exclusion.

For example, in a case before the High Court in 2017, concerning the capacity of a young mother (under the age of 16) of a newborn child to consent to the adoption of her child, the judge summed up the elements of Gillick competence, namely that the child should be able to:
•	Understand the nature and implications of the decision and the process of implementing that decision;
•	Understand the implications of not pursuing the decision;
•	Retain the information long enough for the decision-making process to take place;
•	Be of sufficient intelligence and maturity to weigh up the information and arrive at a decision;
•	Be able to communicate that decision.
The judge also reiterated that assessments of Gillick competence should be both child-specific and decision-specific.

Where the Children Act 1989 places duties on local authorities to ascertain and give due consideration to the child’s wishes and feelings, it is vital for advocates to challenge assumptions that a child lacks capacity due to their age, impairment or other characteristic. Such conditions and caveats are not written into the legislation itself. Moreover, the wishes and feelings’ duties in the 1989 Act are twofold. Firstly, to find out children’s wishes and feelings; and here it may be arguable that a particular child has no wish or view about a particular matter, but it would be foolish and insulting to assume the absence of feelings. Secondly, local authorities are duty-bound to give the child’s wishes and feelings due consideration, having regard to the child’s age and understanding.     

Further, it is important to note that the Gillick ruling did not grant children deemed to be capacitous the right to self-determination, that is an absolute entitlement to make all types of decisions about their own lives and their own bodies. Subsequent court decisions have gone against the expressed wishes of children found by judges to be Gillick competent – where life-saving surgery or medical intervention was ordered, for example. Lady Hale, the former President of the Supreme Court, discussed some of these cases in a children’s rights lecture given in 2013, which can be found here.   

You can read the full judgment here: Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985)

Learn more: 

For other cases we covered in our landmark judgments series this year, visit the October 2021 (‘The Howard League judgment’ and the application of the Children Act 1989 to child prisons), April 2021 (‘The D judgment’ and the issue of deprivation of liberty), and the January 2021 issues (‘The Southwark judgment’ and the rights of homeless 16 and 17-year-olds).