The decision of the House of Lords in Gillick v West Norfolk Area Health Authority carved out a safe space for competent minors to confidentially access sexual and reproductive health care and advice in the UK. Ireland is one of the few common law jurisdictions that has not endorsed Gillick or a similar mature minor doctrine, nor has it securely legislated for the right to consent of those aged 16 and 17 years. The legal lacuna created by this deficiency has left young persons in Ireland seeking sexual and reproductive healthcare, and the clinicians who provide this, in a challenging place. While this void has been partially filled with policy statements by bodies such as the Irish College of General Practitioners and the Health Service Executive, nonetheless the legal shortcomings leave both a sense of insecurity, and real world difficulties for adolescents seeking to access to sexual and reproductive healthcare.
FortinJ. The Gillick decision – not just a high-water mark. In: GilmoreSHerringJProbertR (eds) Landmark cases in family law. Oxford: Hart Publishing, 2011, pp.119–223.
3.
See for example, Re E (A Minor) (Medical Treatment) [1993] 1 FLR 386; Re L (Medical Treatment) (Gillick Competency) [1998] 2 FLR 810.
4.
Re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11; Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] 3 WLR 758.
5.
GilmoreSHerringJ. No is the hardest word: consent and children’s autonomy. Child & Fam L Q2011; 23: 3–25; Lyons B. Dying to be Responsible: Adolescence, Autonomy and Responsibility. Legal Studies 2014; 30: 257–78.
6.
CaveE. Goodbye Gillick? Identifying and resolving problems with the concept of child competence. Legal Studies2014; 34: 103–122.
7.
E/CN.4/RES/1990/74.
8.
General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), 17 April 2013, CRC/C/GC/15, para. 31.
9.
See for example, Secretary of the Department of Health and Community Services v JWB and SMB [1992] HCA 15 (Australia); AC v Manitoba [2009] SCC 30 (Canada).
10.
Ni RiainA. Consent in under 16’s – the issues for Irish General Practice. Dublin, 2005.
11.
HSE. National consent policy. Dublin, 2022.
12.
Committee on the Rights of the Child. General Comment No. 15 on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) (CRC/C/GC/15). Geneva, 2013, para. 30.
13.
As cited in Gillick v West Norfolk & Wisbech HA [1985] 2 WLR 413 per Parker LJ at [417].
14.
GrimwoodT. Gillick and the consent of minors: contraceptive advice and treatment in New Zealand. Victoria U Wellington L Rev2009; 40: 743–759.
15.
[2006] EWHC 37 (Admin).
16.
TaylorR. Reversing the retreat from Gillick? R (Axon) v secretary of state for health. Child & Fam L Q2007; 19: 81–97.
17.
Department of Health. Teenage pregnancy Cm 4342. London, 1999.
18.
Department of Health. Best practice guidance for doctors and other health professionals on the provision of advice and treatment to young people under 16 on contraception, sexual and reproductive health. London, 2004.
19.
An NHS Trust v A. B. C and A Local Authority [2014] EWHC 1445 (Fam).
20.
Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363.
21.
Conception rates for under 18s in England have been decreasing steadily (although this is likely due to a range of factors and not attributable solely to the legal position). England saw a 60% decrease in such pregnancies between 1998 and 2016 while the decrease in Scotland over a similar period was 58% and in Wales was 62%. See Baxter A, Dundas R, Popham F, Craig, P. How Effective was England’s Teenage Pregnancy Strategy? A Comparative Analysis of High Income Countries. Soc Sci Med 2021; 270: 113685.
22.
NolanA. The battle(s) over children’s rights in the Irish constitution. IPS2007; 22: 495–516.
23.
This was perhaps most evident in N v HSE [2006] 4 IR 375 where a two year old child was removed from her prospective adoptive parents with whom she had lived and returned to her natural parents (who had now married) notwithstanding expert evidence that this would lead to psychological or emotional damage for the child. See Kilkelly U, O’Mahony C. The Proposed Children’s Rights Amendment: Running to Stand Still? Ir J Fam Law 2007; 10(2): 19–25.
24.
United Nations Committee on the Rights of the Child. Concluding observations: Ireland (CRC/C/IRL/CO/2). Geneva, 2006, paragraph 9.
25.
SeeO’MahonyC. Falling short of expectations: the 2012 children amendment, from drafting to referendum. IPS2016; 31: 252–281.
26.
In the Matter of JJ [2021] IESC 1, at [131].
27.
Law Reform Commission. Children and the law: medical treatment. Dublin, 2011, pp.39–42.
28.
[2013] IEHC 12.
29.
The Child and Family Agency v AA [2018] IEHC 112.
30.
[2006] IESC 2, [15.1].
31.
Guide to professional conduct and ethics for registered medical practitioners. 8th ed. Dublin: Medical Council, 2019.
32.
NolanASmythE. Talking about sex and sexual behaviour of young people in Ireland. Dublin: ESRI, 2020.
33.
Irish Family Planning Association. Annual report 2010: Access, choice and advocacy. Dublin, 2011. Available atwww.ifpa.ie. Accessed 21/07/2023.
34.
McMahonDDarkerCO’SheaB, et al.The prescribing of contraception and emergency contraception to girls aged less than 16: what are the views and beliefs of GPs and parents?MLJI2010; 16: 91–96.
35.
CroninHDugganEO’TuathaighE, et al.Attitudes of general practitioners to prescribing contraception to minors - a medico-legal review. MLJI2013; 19: 28–33.
36.
HydeA, et al.Sexual health and sexuality education needs assessment of young people in care in Ireland (SENYPIC): composite report of findings. Dublin: HSE/Crisis Pregnancy Programme/TUSLA, 2016, p.23.
37.
HydeA, et al.Sexual health and sexuality education needs assessment of young people in care in Ireland (SENYPIC): report 3: the perspective of key service providers: a qualitative analysis. Dublin: HSE/Crisis Pregnancy Programme/TUSLA, 2016, p.20.
38.
ChaseEMaxwellCKnightA, et al.Pregnancy and parenthood among young people in and leaving care: what are the influencing factors, and what makes a difference in providing support?J Adolesc2006; 29: 437–451.
39.
Health (Regulation of the Termination of Pregnancy) Act 2018, s.12.
40.
Health (Regulation of Termination of Pregnancy) Act 2018, s.21. This reflects the conservatism of the legislation which had been published in advance of a referendum to amend the Constitution to allow for abortion, when the scale of public support for this change had not yet become apparent. See Donnelly M, Murray, C. Abortion Care in Ireland: Developing Legal and Ethics Frameworks for Conscientious Provision. Int J Gynecol Obstet 2020; 148(1): 127–132.
41.
O’SheaM. Report of the independent review of the operation of the health (Regulation of Termination of Pregnancy) Act 2018. Dublin: Department of Health, 2023.
42.
Although the legislation requires the collection of certain data, this does not include the age of the person accessing the service and so a composite picture is not available. The service user study which underpins the Report involves only service users over the age of 18 years. See Conlon C, Antosik-Parsons K, Butler E. Unplanned Pregnancy and Abortion Care (UnPAC) Study. Dublin: HSE, 2022.
43.
After 12 weeks, termination of pregnancy is available only in situations of risk to the woman’s life or health or where the foetus has a life limiting condition. For various reasons, the rollout of this aspect of the legislation has been much less successful and so most women who cannot access within the 12 week window still end up travelling for abortion care.
Committee on the Rights of the Child. Concluding observations on the combined third and fourth periodic reports of Ireland (CRC/C/IRL/CO/3-4). Geneva, 2016, para. 57.
46.
Committee on the Rights of the Child. Concluding observations on the combined fifth and sixth period reports of Ireland (CRC/C/IRL/CO/5-6). Geneva, 2023, para. 33.
