Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 33
Gillick is not a universal test –
an important clarification from
the Court of Appeal
For years, lawyers and clinicians have thrown around the term ‘Gillick competence’ as if it were
a universal test to apply to analyse the decision-making abilities of children. More recently, they
have largely limited themselves to throwing the term around in relation to the decision-making
abilities of children under 16, looking instead (in England & Wales) to the Mental Capacity
Act 2005 for those aged 16 and over.
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43. In their skeleton argument on behalf of the father, Ms
Foulkes and Ms Charlotte Baker submitted:
Both of these are incorrect.
The MCA 2005 only applies to those aged 16 and over
where statute provides that it does (hence why the
Law Commission in its disabled children’s social care
consultation paper proposed expressly making it
apply to decision-making by children in the context
of the assessment and support planning of social care
needs).
‘It is wrong in law to assert that achieving Gillick-competence
serves to narrow parental responsibility in relation to all
and/or significant areas relating to a young person’s welfare,
and in addition, that there must be clear and compelling reasons to override the wishes and feelings of a Gillick-competent
young person (see the “fifth proposition” in S’s skeleton argument). As is explored further below, the ratio in Gillick v West
Norfolk and Wisbech Area Health Authority & Anr is limited
to medical treatment and, although it is often referred to in
family proceedings as a shorthand to describe (a) the rationality and strength of a young person’s feelings; and/or (b)
their capacity to participate in litigation and competence to
instruct their own solicitors, it is not of wider application as a
principle of law.’
In Re S (Wardship: Removal to Ghana) [2025] EWCA Civ
1011, the Court of Appeal has reminded us that the
Gillick test in fact strictly only applies to the determination of whether a child (under 16[1]) has the capacity to give or withhold valid consent to medical
treatment. The case arose in another context altogether, namely whether the High Court had been
wrong to refuse a wardship application – brought by
the child themselves – seeking to bring about their
return from Ghana. In the course of reasons for
explaining why Hayden J had gone about matters in
the wrong way, Sir Andrew McFarlane made some
important observations about the Gillick test:
44. In her oral submissions, Ms Fottrell asserted that Gillick
was of fundamental importance in this case. She challenged
Ms Foulkes’ submission that it was not relevant, as CA 1989,
s 1, the welfare checklist and case law were all informed by
Gillickand stressed the need to give due weight to ‘wishes and
feelings’. Ms Foulkes maintained the position that Gillickapplied directly to medical cases and that it was difficult to see
how it might apply to non-medical decisions. Following further research over the short adjournment, Ms Fottrell drew attention to a Re S (Parent as Child: Adoption: Consent)
[2017] EWHC 2729 (Fam), in which Cobb J (as he then
was) considered the ability of a parent, who was still herself a
child, to give valid consent to the adoption of her own child.
Cobb J clearly considered that Gillick competence was a relevant factor in that situation, albeit that the decision in focus
did not relate to medical treatment. He summarised the approach to be taken as follows:
‘… it is agreed by all parties that in order to be satisfied that
a child is able to make a Gillick-competent decision (ie has
‘sufficient understanding and intelligence to enable him or
her to understand fully what is proposed’: see Lord Scarman
in Gillick, above), the child should be of sufficient intelligence
and maturity to:
(i) Understand the nature and implications of the decision
and the process of implementing that decision.
(ii) Understand the implications of not pursuing the decision.
(iii) Retain the information long enough for the decision making process to take place.
40. Although the impact of the decision in Gillick v West
Norfolk and Wisbech AHA [1986] AC 115 (HL) featured
prominently in the submissions of the two interveners [The International Centre for Family Law, Policy and Practice and
the Association of Lawyers for Children], the points made there
were not developed by the parties to the appeal during the oral
hearing. There was, however, some discussion on the direct
relevance of a child being said to be ‘Gillick competent’ in proceedings which do not relate to medical treatment. It may therefore be helpful to offer some short observations in that regard.
41. In the present case, Hayden J recorded that
‘nobody has disputed that S is a ‘Gillick competent’ young person and that, accordingly, resolution of his application requires his own views to be factored into a best interests decision
relating to his welfare.’
42. In their skeleton argument for S, counsel had put forward
five ‘key propositions’, the fifth of which was:
‘To override the wishes and feelings of a Gillick competent
young person, there must be clear and compelling reasons for
so doing. Parental responsibility does not trump that obligation on the Court, once the Court is seised of a welfare
decision in respect of the young person.’
EXPERT WITNESS JOURNAL
31
OCTOBER/NOVEMBER 2025
