Happy Christmas children of ‘understanding’: know your rights in 2019

20160419_173301Email to a mature child

 

Imagine a case where a 13 year old (Poppy) has been told she can only seek a second legal opinion if she asks the solicitor now in her case. That first solicitor has already said she thinks Poppy does not have enough ‘understanding’.  She wants to live with one parent, the solicitor recommends the other and will not represent Poppy’s views in court (as in eg Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027). The judge says that any lawyer Poppy wants to see for an appeal may only have documents if the court permits it. Believe me, it could happen…

This is an email to Poppy who wants help on an appeal. Her new lawyer has assessed Poppy’s understanding as sufficient to give instructions and to be represented on where she should live.

The text could be used for any child where it is necessary to explain Gillick to the child.

 

Mrs Gillick and her five daughters

 

Hi Poppy

 

Why did the judge’s tell Mrs Gillick: your daughters can go on the pill without telling you? Why can her daughters talk to a doctor without Mrs G knowing? Can you talk to a lawyer about your case without your parent’s agreement? And why should mature children, like you, be listened to by judges where your parents are in court after separation?

 

Mr and Mrs Gillick had five daughters all under sixteen (in law, in UK, anyone under 18 is a ‘child’). She said none of the daughters should be able to have access to contraceptive advice – ie to go on the pill – without her parents’ knowing about it. The House of Lords (the UK’s most senior court) said she was wrong.

 

The health authorities – this was December 1980 – said a doctor can prescribe the pill without parents knowing. Mrs Gillick disagreed. She was the mother of five daughters under 16. She objected to the guidance. There was no suggestion that her daughters were asking for the pill: she objected as a parent.

 

The main speeches (ie judgments in the House of Lords) in Gillick were given by Lord Fraser and Lord Scarman. What they said is still the law nearly 40 years later. They explained how a child’s maturity and understanding changes as a child gets older. Parents must recognise this. So must the law. Lord Scarman (one of my favourite judges of all time) explained this:

 

The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision….

 

Lord Scarman was saying: parents (and judges) must back off as a child gets older. As their ‘understanding and intelligence’ increases everyone – including parents and judges – must have more and more respect for these views.

 

‘Understanding’: what is to be understood?

 

Understanding also depends on what we are talking about: understanding of what you want to eat (ie not what you should eat) is well-developed for a very young child. Tiny children know what they don’t like. Lots of small children don’t like broccoli or cabbage. On the other hand an ‘understanding’ of physics may still be limited, even when you are much older (I can’t claim to have much of an ‘understanding’ of physics; but get me on history, and I’m much better).

 

Gillick applies not just to doctors and broccoli. It applies also when you are involved in court proceedings where your parents have separated. There are all sorts of English laws which say that a child’s views must be listened to by judges.

 

In a court case between parents about where a child should live (‘custody’ or ‘residence’), if a child is old enough to say what they think (express ‘a view’) they should be listened to. If they want to be listened to, this could be through a welfare officer or a lawyer (ie a solicitor).

 

The judge may not agree with what the child wants. That is a different question. But the judge must – for that is the law in England – listen to what a child has to say.

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