For years, lawyers and clinicians have thrown around the term ‘Gillick competence’ as if it were a universal test to apply to analyse the decision-making abilities of children. More recently, they have largely limited themselves to throwing the term around in relation to the decision-making abilities of children under 16, looking instead (in England & Wales) to the Mental Capacity Act 2005 for those aged 16 and over.
Both of these are incorrect.
The MCA 2005 only applies to those aged 16 and over where statute provides that it does (hence why the Law Commission in its disabled children’s social care consultation paper proposed expressly making it apply to decision-making by children in the context of the assessment and support planning of social care needs).
In Re S (Wardship: Removal to Ghana) [2025] EWCA Civ 1011, the Court of Appeal has reminded us that the Gillick test in fact strictly only applies to the determination of whether a child (under 16[1]) has the capacity to give or withhold valid consent to medical treatment. The case arose in another context altogether, namely whether the High Court had been wrong to refuse a wardship application – brought by the child themselves – seeking to bring about their return from Ghana. In the course of reasons for explaining why Hayden J had gone about matters in the wrong way, Sir Andrew McFarlane made some important observations about the Gillick test:
40. Although the impact of the decision in Gillick v West Norfolk and Wisbech AHA [1986] AC 115 (HL) featured prominently in the submissions of the two interveners [The International Centre for Family Law, Policy and Practice and the Association of Lawyers for Children], the points made there were not developed by the parties to the appeal during the oral hearing. There was, however, some discussion on the direct relevance of a child being said to be ‘Gillick competent’ in proceedings which do not relate to medical treatment. It may therefore be helpful to offer some short observations in that regard.
41. In the present case, Hayden J recorded that
‘nobody has disputed that S is a ‘Gillick competent’ young person and that, accordingly, resolution of his application requires his own views to be factored into a best interests decision relating to his welfare.’
42. In their skeleton argument for S, counsel had put forward five ‘key propositions’, the fifth of which was:
‘To override the wishes and feelings of a Gillick competent young person, there must be clear and compelling reasons for so doing. Parental responsibility does not trump that obligation on the Court, once the Court is seised of a welfare decision in respect of the young person.’
43. In their skeleton argument on behalf of the father, Ms Foulkes and Ms Charlotte Baker submitted:
‘It is wrong in law to assert that achieving Gillick-competence serves to narrow parental responsibility in relation to all and/or significant areas relating to a young person’s welfare, and in addition, that there must be clear and compelling reasons to override the wishes and feelings of a Gillick-competent young person (see the “fifth proposition” in S’s skeleton argument). As is explored further below, the ratio in Gillick v West Norfolk and Wisbech Area Health Authority & Anr is limited to medical treatment and, although it is often referred to in family proceedings as a shorthand to describe (a) the rationality and strength of a young person’s feelings; and/or (b) their capacity to participate in litigation and competence to instruct their own solicitors, it is not of wider application as a principle of law.’
44. In her oral submissions, Ms Fottrell asserted that Gillick was of fundamental importance in this case. She challenged Ms Foulkes’ submission that it was not relevant, as CA 1989, s 1, the welfare checklist and case law were all informed by Gillickand stressed the need to give due weight to ‘wishes and feelings’. Ms Foulkes maintained the position that Gillickapplied directly to medical cases and that it was difficult to see how it might apply to non-medical decisions. Following further research over the short adjournment, Ms Fottrell drew attention to a Re S (Parent as Child: Adoption: Consent) [2017] EWHC 2729 (Fam), in which Cobb J (as he then was) considered the ability of a parent, who was still herself a child, to give valid consent to the adoption of her own child. Cobb J clearly considered that Gillick competence was a relevant factor in that situation, albeit that the decision in focus did not relate to medical treatment. He summarised the approach to be taken as follows:
‘… it is agreed by all parties that in order to be satisfied that a child is able to make a Gillick-competent decision (ie has ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’: see Lord Scarman in Gillick, above), the child should be of sufficient intelligence and maturity to:
(i) Understand the nature and implications of the decision and the process of implementing that decision.
(ii) Understand the implications of not pursuing the decision.
(iii) Retain the information long enough for the decision making process to take place.
(iv) Weigh up the information and arrive at a decision.
(v) Communicate that decision.’
45. Having considered the issue during the hearing and since, I am clear that Ms Foulkes is correct that, in terms of its legal impact, the decision in Gillick is limited to the ability of a young person to give autonomous valid consent to medical treatment. The purpose of the decision is to offer clarity for the benefit of medical practitioners who require valid consent for a proposed procedure. Lord Scarman was plain in limiting the context of the principle:
‘I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.’
46. It is also right that, over time, the phrase ‘Gillick competent’ has been used more loosely to describe the age and maturity of young people who are seen as being capable of making informed decisions as to their future in a range of situations wholly unconnected with medical treatment. An example of this is the use of the phrase by Cobb J in Re S, but, it must be stressed, that Re S, whilst not concerning consent to medical treatment, was specifically focused upon the capacity of a the ‘child’ in that case to give valid consent to adoption. Cobb J was not referring to, or deploying, the concept of Gillick competence in the course of making a CA 1989, s 1 determination as to the child’s welfare – which is the situation in the present case.
47. By the close of submissions, Ms Fottrell did not seek to go beyond the position described in the previous paragraph. In the circumstances, it is right to proceed in the present case on the basis that the characterisation of S as being Gillick competent has no direct legal impact in a case which does not concern the evaluation of his ability to give or to withhold valid consent to medical treatment. In the context of this case, ‘Gillick competent’ is no more, nor no less, than a convenient label to indicate that S has sufficient maturity and understanding to form his own view as to where he may live. His ‘wishes and feelings’ are matters that the court is specifically required to take into account by CA 1989, s 1(3)(a). They are to be considered ‘in the light of his age and understanding’. The fact that all parties before the judge accepted that S was Gillick competent was a factor that should have been given appropriate weight by the court in its overall welfare evaluation. The wishes and feelings of a young person who is so regarded are likely to attract more weight, and, depending on the issue in question and the circumstances of the case, in some cases significantly more weight, than that attaching to the wishes and feelings of a younger or less mature child. But, as a matter of law, it is wrong to assert, as the appellant’s ‘fifth proposition’ asserted, that the wishes and feelings of a Gillick competent young person can only be overridden if the court finds clear and compelling reasons for doing so. As with each of the other elements in any holistic welfare balance, all will turn on the weight that is attributed to each of the relevant factors.
Comment
Sir Andrew McFarlane is undoubtedly correct that the term ‘Gillick competence’ has crept in in very many places over the years. There are situations which are closely analogous to the medical treatment context (for instance, consenting to confinement so as to take the circumstances out of the scope of the definition of deprivation of liberty for purposes of Article 5 ECHR). There are also situations which are much less closely analogous (for instance, making decisions about a change of name). This decision will hopefully prompt judges to ask more carefully as to precisely how they are using the term and the test in cases that come before them – and, in turn, whether the labelling of the child’s maturity and understanding is apt to answer the question about the child they have to decide.
More immediately, the Gillick test featured significantly in the context of the Mental Health Bill debates, for instance, with the Government resisting amendments to put the test for decision-making in relation to matters under the MHA 1983 (which extend beyond decisions about treatment to, for instance, appointment of a nominated person) on a statutory footing. The Government expressed concern that to introduce a test specifically for use in the mental health setting would create confusion and uncertainty elsewhere given the broader applicability of the Gillick test. Proceeding on the basis that Gillick does not, in fact, have ‘direct legal impact’ in relation to many of the decisions being taken in the mental health setting might be thought to shed rather a different light on matters.
Sir Andrew’s observations about the decision in Re S are also interesting. It is clear that he endorsed the approach of Cobb J (as he then was), in circumstances where Cobb J reframed Gillick to look very much like the functional limb of the MCA 2005 test. Again in the context of the Mental Health Bill debates, there have been arguments as to whether and how Gillick differs from the MCA 2005. Sir Andrew, for one, [2] would appear to take the view that applying the test is applying the functional aspect of the test in the MCA 2005 (and, as in Re S, it does not then require any analysis of whether any inability to make the decision is down to an impairment / disturbance of the mind / brain).
More broadly, the decision is also helpful for reminding us that not only will the courts override the decision of a Gillick competent child in the medical treatment context where there is appropriate cause to do so, there will also be statutory contexts (most obviously under the Children Act, but also in relation to 1980 Hague Convention cases) where the child’s view can never, itself, be determinative as a matter of law. That does not mean that their views should not be taken seriously, but it means that Parliament (and the courts) have determined that, as children, they are different legal creatures to adults.
[1] As Sir James Munby made clear in NHS Trust v X (In the matter of X (A Child) (No 2)) [2021] EWHC 65 (Fam), at paragraph 77, Gillick competence ceases to be relevant in the context of medical treatment decisions governed by s.8 Family Law Reform Act 1969 when a child turns 16.
[2] It is also interesting to note that the (statutory) MHA Code of Practice uses essentially the same approach as that of Cobb J to interrogate a child’s ability to make relevant decisions – see the (English) Code at paragraph 19.36.
