Expert Witness Journal Issue 63 October 2025 - Flipbook - Page 34
places over the years. There are situations which are
closely analogous to the medical treatment context (for
instance, consenting to confinement so as to take the
circumstances out of the scope of the definition of deprivation of liberty for purposes of Article 5 ECHR).
There are also situations which are much less closely
analogous (for instance, making decisions about a
change of name). This decision will hopefully prompt
judges to ask more carefully as to precisely how they
are using the term and the test in cases that come before them – and, in turn, whether the labelling of the
child’s maturity and understanding is apt to answer
the question about the child they have to decide.
(iv) Weigh up the information and arrive at a decision.
(v) Communicate that decision.’
45. Having considered the issue during the hearing and since,
I am clear that Ms Foulkes is correct that, in terms of its legal
impact, the decision in Gillick is limited to the ability of a young
person to give autonomous valid consent to medical treatment.
The purpose of the decision is to offer clarity for the benefit of
medical practitioners who require valid consent for a proposed
procedure. Lord Scarman was plain in limiting the context of
the principle:
‘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. It will be a
question of fact whether a child seeking advice has sufficient
understanding of what is involved to give a consent valid in
law.’
More immediately, the Gillick test featured significantly
in the context of the Mental Health Bill debates, for instance, with the Government resisting amendments to
put the test for decision-making in relation to matters
under the MHA 1983 (which extend beyond decisions
about treatment to, for instance, appointment of a
nominated person) on a statutory footing. The Government expressed concern that to introduce a test
specifically for use in the mental health setting would
create confusion and uncertainty elsewhere given the
broader applicability of the Gillick test. Proceeding on
the basis that Gillick does not, in fact, have ‘direct legal
impact’ in relation to many of the decisions being
taken in the mental health setting might be thought to
shed rather a different light on matters.
46. It is also right that, over time, the phrase ‘Gillick
competent’ has been used more loosely to describe the age and
maturity of young people who are seen as being capable of
making informed decisions as to their future in a range of situations wholly unconnected with medical treatment. An example of this is the use of the phrase by Cobb J in Re S, but,
it must be stressed, that Re S, whilst not concerning consent to
medical treatment, was specifically focused upon the capacity
of a the ‘child’ in that case to give valid consent to adoption.
Cobb J was not referring to, or deploying, the concept of Gillick
competence in the course of making a CA 1989, s 1 determination as to the child’s welfare – which is the situation in the
present case.
Sir Andrew’s observations about the decision in Re S
are also interesting. It is clear that he endorsed the
approach of Cobb J (as he then was), in circumstances
where Cobb J reframed Gillick to look very much like
the functional limb of the MCA 2005 test. Again in the
context of the Mental Health Bill debates, there have
been arguments as to whether and how Gillick differs
from the MCA 2005. Sir Andrew, for one, [2] would
appear to take the view that applying the test is applying the functional aspect of the test in the MCA
2005 (and, as in Re S, it does not then require any
analysis of whether any inability to make the decision
is down to an impairment / disturbance of the mind /
brain).
47. By the close of submissions, Ms Fottrell did not seek to go
beyond the position described in the previous paragraph. In the
circumstances, it is right to proceed in the present case on the
basis that the characterisation of S as being Gillick competent
has no direct legal impact in a case which does not concern the
evaluation of his ability to give or to withhold valid consent to
medical treatment. In the context of this case, ‘Gillick competent’ is no more, nor no less, than a convenient label to indicate that S has sufficient maturity and understanding to form
his own view as to where he may live. His ‘wishes and feelings’
are matters that the court is specifically required to take into account by CA 1989, s 1(3)(a). They are to be considered ‘in the
light of his age and understanding’. The fact that all parties
before the judge accepted that S was Gillick competent was a
factor that should have been given appropriate weight by the
court in its overall welfare evaluation. The wishes and feelings
of a young person who is so regarded are likely to attract more
weight, and, depending on the issue in question and the circumstances of the case, in some cases significantly more weight,
than that attaching to the wishes and feelings of a younger or
less mature child. But, as a matter of law, it is wrong to assert,
as the appellant’s ‘fifth proposition’ asserted, that the wishes
and feelings of a Gillick competent young person can only be
overridden if the court finds clear and compelling reasons for
doing so. As with each of the other elements in any holistic
welfare balance, all will turn on the weight that is attributed
to each of the relevant factors.
More broadly, the decision is also helpful for
reminding us that not only will the courts override the
decision of a Gillick competent child in the medical
treatment context where there is appropriate cause to
do so, there will also be statutory contexts (most obviously under the Children Act, but also in relation to
1980 Hague Convention cases) where the child’s view
can never, itself, be determinative as a matter of law.
That does not mean that their views should not be
taken seriously, but it means that Parliament (and the
courts) have determined that, as children, they are
different legal creatures to adults.
[1] As Sir James Munby made clear in NHS Trust v X
(In the matter of X (A Child) (No 2)) [2021] EWHC 65
(Fam), at paragraph 77, Gillick competence ceases to
be relevant in the context of medical treatment decisions governed by s.8 Family Law Reform Act 1969
when a child turns 16.
Comment
Sir Andrew McFarlane is undoubtedly correct that the
term ‘Gillick competence’ has crept in in very many
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