Book Review: Lisa Forsberg, Isra Black and Anthony Skelton (eds), Consenting Children: Autonomy, Responsibility, Well-Being (Liverpool University Press: Proceedings of the British Academy 2025, 321 pp, hardback / ebook £80)
After a period where debates about the ability (both cognitive and legal) of children to make their own decisions seemed to have become largely confined to the classroom, they are now firmly back on the courtroom agenda in England & Wales, with cases over the last few years examining the (legal) capacity of children to consent to confinement, to refuse life-sustaining treatment, as well as to accept medical treatment, and cases daring to question whether Gillick really does provide the last word in probing the (cognitive) abilities of children to make their own decisions. That latter question has also been canvassed vigorously before Parliament in the context of the Mental Health Bill, and the subject of detailed consideration by the Law Commission in the context of the involvement of disabled children in decisions about assessing and meeting their social care needs.
It is therefore undoubtedly time for a volume in which the academy takes stock of most (but, thanks to the timelines of producing such a volume, not all) of these decisions. And there are few better equipped than the editorial team behind Consenting Children to bring together a group of scholars of different disciplines – and helpfully – from different jurisdictions – to reflect on the controversies raised by arguments about children’s autonomy, responsibility and well-being. The contributions range widely across three broad themes (children’s consent and capacity, children’s consent and other parties, and children’s responsibility). The contributions are never less than stimulating, even if some undoubtedly require a willingness to settle down with a wet towel and a notebook to keep track of the Greek letters being used to develop the thesis in question.
As an overarching observation, it remains a source of fascination to me that the UN Convention on the Rights of Disabilities simply appears not to feature on the radar in the (deep) thinking of the contributors to the volume – it appears precisely zero times in the table of legislation, compared to 8 mentions of the UN Convention on the Rights of the Child. Of course, the state of childhood is not, itself, a disability, but very many of the situations in which the law becomes involved in the areas concerned by chapters in this book involve children who fall within the scope of the UNCRPD. Further, there is, or can be, an overlap between the ‘hard line’ advocates for the CRPD’s model of universal legal capacity in relation to adults, and ‘children’s liberation’ activists, who equally see no justification in limiting legal capacity by age. In this regard, Article 7 CRPD could be fruitful source of examination in due course.
This book undoubtedly fulfils the editors’ ambitions to lay the groundwork for future engagement in the legal and philosophical literature with the issues covered. Some of that engagement will, I trust, be with those who spend their time thinking about related issues in adulthood – most obviously those grappling with the ever greater body of neuroscientific evidence which suggests that ‘cognitive’ adulthood does not start until 25. And I would urge a continued, and clear-eyed focus on the distinction between legal capacity and mental capacity / competence – as Sir Andrew McFarlane has recently reminded us, unless we know whether we are even in principle looking in law to the child for a decision, we are starting off on the wrong foot (and we must be careful about flinging around the term Gillick).
However, overall, this is an excellent work, upon which both the editors and contributors are to be congratulated.
[Full disclosure: I was provided with a copy of this book by the publishers. I am always happy to review books in the field of mental and capacity law, broadly defined.]
