Children Making Legal Decisions

Capacity of children to make legal decisions

You can ask our solicitors online for advice on children making legal decisons using the question box on the front of our website or the following free legal advice guidemay answer your questions.

In recent years, it has become increasingly important that children making legal decisons and their consent are taken into consideration particularly when these decisions are being made about them. It was thought for many years that children lacked the capacity in a legal sense to make decisions, provide consent or provide decisions from a legal perspective. 

As a result what was in the best interests of the child was often down to the parent or guardian.

children making legal decisons

Childrens Decisions

However, current views provide a more flexible approach. Parental powers over decision making are now treated differently and are only effective provided that they are used in the interests of the child. It is no longer accepted that children are under the control of the parents until they reach a certain age. At some stage in the life of the child, they will receive the right to make decisions for themselves.

The courts view this as an incremental process and as the child grows older, the more involved they can be in the decision making process. As the child ages, parental responsibility will decrease.

However, the extent to which a child’s decisions are upheld will depend on a number of issues including the age of the child and their understanding of the situation, as well as the consequences of the decision that they are being asked to take.

Children making legal decisons in relation to where they live, providing consent to contracts, making a will or in some instances, marriage. Nevertheless, the main areas where issues often arise is when a situation arises that relates to psychiatric or medical treatment.

In terms of medical or psychiatric treatment, the courts will carefully consider whether the child has adequate understanding of the situation to make an informed decision about their treatment. This decision could relate to consenting to treatment or refusing treatment completely.

If the child is considered to have a good level of understanding, their decision could be upheld, even if their parents have opposing views. A court can also uphold the views of the child and the parents have no authority to contradict or override the decision of the child, forcing them to take a particular course of action.

The courts are more likely to uphold the decision of a child when it relates to providing consent for specific medical treatments. It is important to understand however, that a minor cannot override consent provided by someone with parental authority or by the Court.

Gillick Competency

When the court is assessing a child under Gillick Competency, they will take into consideration a number of factors relevant to the case, including the age of the child and the issues that are being considered. The Court will also evaluate whether the child has developed adequate understanding of the situation to make an informed choice.

As such, the age of the child is of paramount importance. If a child of 17 years makes a decision, this is more likely to be upheld than a decision made by someone aged 14 years.

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