In October 1992 Michael Freeman addressed a BAAF North Region Seminar on ‘Consent to treatment under the Children Act’. In this article he clarifies the complex legal issues which surround consent.
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References
1.
FreemanM. D. A., The rights and wrongs of children, Pinter, London, 1983; The rights of children, Blackwell, Oxford, 1986, EekelaarJ, ‘The emergence of children's rights’ Oxford Journal of Legal Studies, 6, 161.
2.
To a greater extent in Scotland. See Scot. Law. Com. No. 135, Report on Family Law, 1992.
3.
An early example was M v M (1973) 2 All E. R. 81 (access as a child's right) (1986) A. C 112.
4.
FreemanM. D. A., Children, their families and the law, Macmillan, Basingstoke, 1992.
5.
See, in particular, Article 12.
6.
(1992) 1 F. L. R. 190.
7.
(1992) 4 All E. R 627.
8.
The action was a challenge to a Circular: none of Mrs Gillick's daughters were then seeking contraceptive advice or treatment.
9.
Though the judgments give very little attention to what amounts to ‘competence’.
10.
(1992) 4 All E. R. 627, 634.
11.
(1992) 1 FLR 190, 199.
12.
Parents and children, Sweet and Maxwell, London, 1981, p. 12.
13.
Family Law, Butterworth, London, 1987, p. 275.
14.
Lord Scarman thought s8 (3) clarified the law without conveying any indication as to what it was before: Lord Fraser that it left open the question whether consent by a minor under 16 would have been effective if the section had not been enacted.
15.
See Lord Denning M R in Hewer v Bryant (1969) 3 All E. R 578, 582.
16.
Lord Scarman's words in Gillick (1986) AC. 112, 186.
17.
(1986) AC 112, 188–189.
18.
See Lord Scarman in Gillick at p. 186.
19.
(1992) FLR190, 197–198.
20.
JonesM, ‘Consent to medical treatment by minors after Gillick’, Professional Negligence, 2, 41.
21.
They are in s38 (6) (interim care or interim supervision order), s43 (8) (child assessment order), s44 (7) (emergency protection order), and paras 4 (4) (a) and s(5) (a) of Schedule 3 (supervision order).
22.
Para 5 (5) (a) of Schedule 3.
23.
Re W (1992) 4All E. R627, 638.
24.
Ibid, p. 643.
25.
An important dichotomy noted byFarsonR, Birthrights, Penguin, Harmandsworth, 1978, p. 12.
26.
Under s33 (3) of the Children Act1989.
27.
(1992) 1 FLR 190.
28.
CretneyS, ‘Defining the limits of state intervention: The child and the courts’, in FreestoneD, Children and the law, Hull University Press, Hull, 1990, pp. 58–74.
29.
See s100 (1).
30.
Section 100 (3), 4 (b).
31.
See LordMackay, ‘Joseph Jackson Memorial Lecture’, New Law Journal, 139, 505–508 (1989).
32.
Section 22 (4) (a), (5) (a).
33.
WadeH. W., Administrative law, Clarendon Press, Oxford.
34.
See Children Act1989s26 (3).
35.
G v G (1985) 2 All E. R. 225.
36.
See s1 (4) of the Children Act1989.
37.
It is then reported as re J. See The Times, 14 May 1992.
38.
Idem.
39.
(1992) 4 All E. R. 627, 647.
40.
See, for agreement, WhiteRCarrPLoweN, A guide to the Children Act 1989, Butterworths, London, 1990, para.1.18.
41.
Known as expressio unius, exclusio alterius.
42.
(1992) 4 All E. R. 627, 648.
43.
Idem.
44.
Her status is not entirely clear. She had originally been received into care (Lord Donaldson comically describes this as a voluntary care order). An interim care order was made subsequently but it does not appear that a care order was ever made.
45.
Which it could then do (this was several months before the Children Act came into operation).
46.
See Lord Donaldson (1992) 1 FLR 190, 200.
47.
(1992) 1 FLR 190, 202.
48.
(1992) 1 FLR 190, 196. He rejected this in re W (see below p. 11).
49.
Idem.
50.
Idem.
51.
See above, p. 8.
52.
Ibid, pp. 197–198.
53.
Ibid, p. 206. In (1977) Fam. 158 Dunn J referred to the welfare of the child as ‘the golden thread’ running through wardship.
54.
Now ‘the paramount consideration’ (Children Act 1989 s1 (1)).
55.
(1992) 4 All E. R. 627, 629 per Lord Donaldson M. R.
56.
(1992) 1 FLR 190, 206.
57.
(1992) 4 All E. R. 627, 641.
58.
Ibid, p. 643.
59.
Above, p. 9.
60.
See FreemanMDA, ‘Sterilising the mentally handicapped’ in FreemanMDA, Medicine, ethics and the law, Stevens, London, 1988, 55–84.
61.
Re B (1988) AC 199.
62.
He cites several of which I would pick out Bainham A, ‘The judge and the competent minor’, Law Quarterly Review, 108, 194 (1992) and.
63.
(1992) 4 All E. R. 627, 635.
64.
Ibid, p. 635–636. See also Balcombe L J at 644–645.
65.
Re D (1976) Fam. 185.
66.
What the judges fail to appreciate is that until the whistle is blown gross infringements of human rights are routine. No one knows how many involuntary sterilisations preceded re D or, for example, how many defective newborns were allowed to die on a parent's say-so before re B (1981) 1 WLR 1421.
67.
See FreemanMDA, ‘Taking children's rights more seriously’International Journal of Law and The Family, 6, 52–71 (1992).
68.
(1992) 4 All E. R. 627, 639–640.
69.
Even now countenancing forcing an adult competent woman to undergo a Caesarian (re S (1993) 1 FLR 22). See, generally, re J (1992) 2 FLR 165.
70.
Eating disorders, Routledge, Kegan Paul, London, 1974 p. 50.
71.
Ibid, p. 88.
72.
(1992) 4 All E. R. 627, 643.
73.
Re R was followed in re K, W and H (1993) 1 FLR 240.
