Usually, a person’s capacity to consent is set out within the Mental Capacity Act 2005, which applies to those aged 16 and over. The rules and guidance in respect of assessing the capacity of a young person under 16 is set out within the case of Gillick v West Norfolk and Wisbech Area Health Authority.
What is “Gillick competence”?
The term Gillick competence originated from the above case of Gillick v West Norfolk and Wisbech Area Health Authority from the 1980s. This case was in relation to whether doctors were able to give advice in relation to contraception for children under 16 years of age, without their parents’ consent. The judgment in respect of the same can be found here – Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985) (bailii.org)
Capacity applies both in a medical context and in relation to other instances, for example whether or not a young person has the capacity to provide their own instructions in respect of where they live, without their parents’ consent.
Sometimes, a child may have capacity to provide instructions in relation to medical treatment, but not in relation to where they may live and vice versa. Each situation will need to be assessed based on those particular circumstances.
How do you know if a child is Gillick competent?
There are several factors that will need to be considered when assessing if a child has capacity to consent. Some of these are set out below:
- The child’s age, maturity and mental capacity
- The child’ understanding of the issues
- The child’s understanding of the risks and consequences
- Their understanding of alternate options
- Whether they understand the advice that has been provided
- Their ability to give a reasoning for their decision making
Capacity and competence
Professionals should also bear in mind the distinctions between a young person’s capacity to consent to either medical treatment or decisions in respect of their circumstances, versus their competence to instruct a solicitor directly. Whilst there are many similarities, professionals should be mindful of the distinction.
When assessing a child’s competence to instruct their own solicitor, Williams J set out a list of factors to consider in the case of Re CS (A Child) – [2019] 1 WLR 4286 the judgment for which, can be found here CS v SBH & Ors (Appeal FPR 16.5: Sufficiency of Child’s Understanding) [2019] EWHC 634 (Fam) (18 March 2019) (bailii.org). The factors to consider are set out at paragraph 64 of the judgment. Professionals should also refer to the FJC guidance in respect of the same.
When assessing whether a young person is competent to provide their own instructions, professionals should be mindful as to whether they are being pressured by someone else. Case law does provide however, that just because a child may have the same view as their parents, that this does not mean that they are being influenced or pressured by them.
Should you require advice in respect of the above, please contact Lyons Davidson and one of our family law experts will be able to assist you.
