Legal update: the family division endorses the use of Mental Capacity Act concepts when assessing the Gillick competence of a child under 16

Re S (Child as parent: Adoption: Consent) [2017] EWHC 2729 (Fam) The Family Division of the High Court endorses the use of MCA concepts and language when assessing whether a young mother aged under 16 with learning disabilities was Gillick competent to provide parental consent to the placement of her baby for adoption.

Background

At the time of the hearing S, a young mother, was aged under 16 (the judgment does not give her specific age) and was said to suffer developmental delay and learning disabilities. S was reportedly agreeable to her baby, T, being placed for adoption. The case centred on whether S, still a child herself, had the requisite Gillick competence to provide parental consent to the placement of T for adoption and to the adoption itself.

Judgment

The test for capacity in a child under 16 is one of Gillick competence. This test requires the child to have ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ per Lord Scarman in Gillick v West Norfolk and Wisbech AHA [1985]. The test for capacity which applies to those aged 16 or over is that set out in the Mental Capacity act 2005 (MCA). Mr Justice Cobb thought it illogical that a different capacity assessment should apply to a child under 16, to that which applies to a person 16 or over where the decision to be made (whether to consent to adoption) was the same decision faced by each. He therefore found it helpful to ‘borrow’ concepts and language from the Mental Capacity Act 2005 (MCA) when determining whether S was Gillick competent to provide parental consent, with appropriate adjustments to reflect age and maturity.

Mr Justice Cobb considered that the following MCA principles could usefully be applied to the assessment of Gillick competence:

• Gillick competence must be decision specific and child specific.
• A child may be Gillick competent for one purpose while simultaneously lacking competence for another purpose.
• An assessment of Gillick competence must be based on the child’s ability to make a specific decision at the time it needs to be made (i.e. not their ability to make decisions generally)

When assessing whether a child under 16 has ‘sufficient understanding and intelligence to enable him or her to understand fully what is proposed’ (the Gillick competence test) Mr Justice Cobb stated that the child is required to:

• understand the nature and implications of the decision and the process of implementing that decision;
• understand the implications of not pursuing the decision;
• retain the information long enough for the decision-making process to take place;
• be of sufficient intelligence and maturity to weigh up the information and arrive at a decision
• be able to communicate that decision

In applying the MCA principles to the assessment of S’s Gillick competence to consent to her child’s adoption, Mr Justice Cobb concluded that what was required was for S to demonstrate a ‘sufficient’ understanding of the salient facts around adoption. He added that when determining a child’s competence to make a decision, all practical steps should be taken to assist the child in doing so, including use of age appropriate information, simple language, visual aids etc. Mr Justice Cobb was directly referencing the provisions contained within the MCA. He commented that:-

I see considerable merit in borrowing key aspects of MCA 2005 and importing them into the assessment of Gillick competence of a young person at common law, in order to maintain a consistency of approach to the assessment of capacity of adults decision-makers and children decision-makers. Just as the capacity threshold should not be set artificially high under the MCA 2005, nor should it be for children.

Comment

This judgment provides useful clarity on how the common law Gillick competence test (which predates MCA by two decades) should be applied in practice to under 16’s. It brings the test into line with modern day MCA principles while acknowledging that appropriate adjustments are required to reflect the age and maturity of the child. It is entirely sensible that the capacity test applied to a 15 year old (who falls just outside of the scope of the MCA) ought to be materially the same as that applied to a 16 year old faced with precisely the same decision, in this case, whether to consent to their child being placed for adoption.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions about this guidance or require any advice on the issues discussed in this update please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk