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Parental responsibility refers to all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. A parent has control over their child’s choices until they reach the age of 16 but naturally parental powers and responsibility to make decisions for and on behalf of children changes over time depending on the nature of the decision and the age of the child.
In a case called Gillick v West Norfolk and Wisbech Area Health Authority [1986] the House of Lords held that a child under 16 was capable of giving consent to medical treatment if he was capable of understanding what was proposed and was capable of expressing his own wishes. This concept is now known as “Gillick competence” and a child who is considered to have capacity to make their own decisions is known as “Gillick competent”. Whether a child is considered competent is fact-specific and will depend on the circumstances of the case.
The effect of Gillick was that it created a climate of expectation that a child will be consulted, and their wishes taken into account, when any important decision is being made about their upbringing. This case is now used along with the “Fraser guidelines” that came from another case to help assess whether a child has sufficient maturity to take their own decisions and understand the implications of them.
To be considered Gillick competent, a child must have:
- The ability to understand that there is a choice and that choices have consequences
- Willingness and ability to make a choice
- An understanding of the nature of the proposed course of action
- An understanding of the proposed treatment and its risks (if medical)
- An understanding of the alternatives
- Freedom from pressure
Gillick competency is not a trump card; it does not necessarily mean that that the child’s desires will prevail over that of the person with parental responsibility. That being said, the wishes of a Gillick competent child will hold more weight in the eyes of the court, and generally their wish must be respected. Generally, if a Gillick competent child consents to something, someone with parental responsibility cannot override their “yes". But someone with PR may be able to override a competent child’s “no”. The court can disregard a Gillick competent child’s wishes where they believe his welfare requires it. However, even here the child’s beliefs will carry significant weight.
Gillick competency will be relevant in several areas, including publicity, confidentiality, adoption, paternity testing, and separate representation of a child in court. So, when dealing with any of these matters or any other important decision in a child’s life, you should be conscious that they could be entitled to make their own decision about it.
If you wish to book in for an initial consultation to discuss your situation our family solicitors are based in both Wolverhampton and Cradley Heath and serve clients across the West Midlands. For all new enquiries, please call 01902 328 355 or complete our online enquiry form and a member of our team will respond.