Capacity of children to make legal decisions

The child’s wishes and decisions in the family courts

In recent years, it has become increasingly important that the views and opinions of children are taken into consideration particularly when 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.

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.

A child can make decisions 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.

Intervention by the State in order to protect Children

Local authorities have a duty of care to safeguard the welfare of children in their area. Where there are concerns over the welfare or safety of a child, this must be explored by the council and appropriate action taken depending on the situation. Section 47(1) of the Children’s Act 1989 deals specifically with how local authorities can intervene to protect children and there are three main elements that include:

If the child is the subject of an Emergency Protection Order

If the child is in police protection

If the child has contravened a ban which has been put in place by a curfew notice under Chapter 1 or Part 1 of the Crime and Disorder Act 1988

The local authority can also take action when they have reasonable belief that a child who is living or is found to be living in the area who is suffering or likely to suffer significant harm. Furthermore, the council must have taken suitable steps to carry out the necessary enquiries to determine what action should be taken to safeguard the welfare of the child.

Local Authority Enquiries

When enquiries are being made by the local authority to evaluate the welfare of a child, they should take all reasonable steps to communicate with the child or ensure that someone can visit the child to make a suitable assessment. This designated individual will often be authorised by the local authority to visit the child. A number of things will need to be considered as part of the enquiry process:

The Child’s Point of View

Where it is possible to do so, given the age and understanding of the child, the local authority should always consider the thoughts and feelings of the child.


Sometimes enquiries may present problems in relation to accessing information or visiting the child. Perhaps the person responsible for the child will not allow you to visit the child or maybe you cannot obtain records in relation to the child. In these cases, then the local authority can make an application for an Emergency Protection Order.


The Police have certain powers that they can use under Section 46 of the Children Act 1989 which offers a certain degree of protection. If the police have sufficient grounds to believe that a child may be suffering from significant harm without intervention from the state, they may remove the child and place them in suitable accommodation and/or take reasonable steps to ensure that the child is safe from harm. The Police cannot however gain entry to or search a building. Police protection can last for a maximum time of 3 days before it is referred to another partner agency. This is an immediate form of production and an Order will be granted to allow an extension to further protect the child.

Court Investigations

Under Section 37(1) of the Children’s Act 1989, the Court may instruct that an investigation is carried out to explore the child’s living arrangements and circumstances before they will make a decision as to whether to grant a care or supervision order.


About the author:
This article was written for Expert Answers by a member of the Expert Answers legal advice team and posted by Lloyd Barrett. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.

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