In educational, medical and legal settings, the term ‘Gillick competence’, as coined from a legal case bearing that name in 1986, has been used as an assessment of a child’s level of maturity (not necessarily reflecting his or her chronological age).
In the Gillick case, a parent challenged guidance that had been issued by the Department of Health and Security, permitting a doctor to give medical advice or treatment about contraception to a child under the age of 16 if, among other factors, the child was sufficiently mature to make decisions without the input of a parent. In the House of Lords (now the Supreme Court), Lord Scarman said: “I would hold 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.”
Today, Gillick competence is still the measure of the extent to which a child’s input is taken into account in child court proceedings. In fact, the court makes every effort to include children, often via a Cafcass report, in which a Cafcass officer meets with parents and children, and then provides the court with a report setting out their wishes and feelings. As children mature towards Gillick competence, their voice or input becomes far more central to the decisions being made about them.
Two recent examples are the cases of AS v CPW [2020] EWHC 1238 (concerning a 14½ year old boy), and SH (A Child) [2020] EWHC 1510 (concerning a 12½ year old girl). In both cases, the court assessed the child’s maturity and viewpoint. On both occasions, the judge concluded the children were Gillick competent and therefore able to express wishes and feelings that were central to the judges’ decision making. In AS, the judge said that “…the wishes of a Gillick-competent child on a particular issue, where they are not objectively foolish or unreasonable, should normally be given effect.” Similarly, in SH, the child was described as being a highly articulate and intelligent young person who was able to express her feelings maturely. It was in fact because of her particular maturity that the judge considered it appropriate to depart from the usual regime that might support the needs of an average 12 year old.
There are other legal cases in which older children have been assessed not to be Gillick competent. One example is if children have been caught in a high-conflict environment between their parents, in which case their ability to express views that are independent of their parents may have been compromised.
Overall, the family courts are committed to ensuring children’s voices are heard and that children participate in proceedings so far as it is appropriate to do so. This is in accordance with the UN Convention on the Rights of the Child, to which the UK is a signatory, as well as a child’s right to a fair trial as set out in Article 6 of the European Convention on Human Rights.
In the family and child law team, we are used to advising and supporting parents who have older children who may themselves be represented by a guardian, or have their own separate legal representation.