Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7 (17 October 1985)

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Cite as: [1986] AC 112, [1986] 1 FLR 229, [1985] UKHL 7

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JISCBAILII_CASE_FAMILY

JISCBAILII_CASE_SCOT_FAMILY

    Parliamentary Archives,
    HL/PO/JU/18/245

    Gillick (A.P.) (Respondent)
    v.

    West Norfolk and Wisbech Area Health Authority and the
    Department of Health and Social Security (Appellants)

    (England)

    JUDGMENT

    Die Jovis 17° Octobris 1985

    Upon Report from the Appellate Committee to whom was
    referred the Cause Gillick against West Norfolk and Wisbech
    Area Health Authority and the Department of Health and Social
    Security, That the Committee had heard Counsel on Monday the
    24th, Tuesday the 25th, Wednesday the 26th and Thursday the
    27th days of June, and Monday the 1st, Tuesday the 2nd,
    Wednesday the 3rd and Thursday the 4th days of July last,
    upon the Petition and Appeal of the Department of Health and
    Social Security of Alexander Fleming House, Elephant and
    Castle, London, SE1, praying that the matter of the Order
    set forth in the Schedule thereto, namely an Order of Her
    Majesty's Court of Appeal of the 20th day of December 1984,
    might be reviewed before Her Majesty the Queen in Her Court
    of Parliament and that the said Order might be reversed,
    varied or altered or that the Petitioners might have such
    other relief in the premises as to Her Majesty the Queen in
    Her Court of Parliament might seem meet; as also upon the
    Case of Victoria Gillick lodged in answer to the said Appeal,
    and due consideration had this day of what was offered on
    either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the Appeal be Allowed, and the Declaration
    made in the said Order of Her Majesty's Court of Appeal of
    the 20th day of December 1984 against the Respondent
    Department of Health and Social Security complained of in the
    said Appeal be, and the same is hereby, Set Aside: And it is
    further Ordered, That the Costs of the Respondent be taxed in
    accordance with Schedule 2 to the Legal Aid Act 1974; And it
    is also further Ordered, That the Cause be, and the same is
    hereby, remitted back to the Queen's Bench Division of the
    High Court of Justice to do therein as shall be just and
    consistent with this Judgment.

    Cler: Parliamentor:

    HOUSE OF LORDS

    GILLICK
    (RESPONDENT)

    WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY
    AND THE DEPARTMENT OF HEALTH AND SOCIAL SECURITY

    (APPELLANTS) (ENGLAND)

    Lord Fraser of Tullybelton
    Lord Scarman
    Lord Bridge of Harwich
    Lord Brandon of Oakbrook
    Lord Templeman


    LORD FRASER OF TULLYBELTON

    My Lords,


    The main question in this appeal is whether a doctor can
    lawfully prescribe contraception for a girl under 16 years of age,
    without the consent of her parents. The second appellant, the
    Department of Health and Social Security ("the D.H.S.S.")
    maintains that a doctor can do so. The respondent, Mrs. Gillick,
    maintains that he cannot. The first appellant, West Norfolk and
    Wisbech Area Health Authority, was not represented when the
    appeal reached this House, but in the Court of Appeal they were
    represented by the same counsel as the D.H.S.S.

    In December 1980, the D.H.S.S. issued guidance on family
    planning services for young people, which was a revised version of
    earlier guidance on the same subject, and which stated, or implied,
    that, at least in certain cases which were described as
    "exceptional," a doctor could lawfully prescribe contraception for a
    girl under 16 without her parents' consent. Mrs. Gillick, who is
    the mother of five daughters under the age of 16, objected to the
    guidance and she instituted the proceedings which have led to this
    appeal, and in which she claims a declaration against both
    appellants that the advice given in the guidance was unlawful.
    She also claims a further declaration against the first appellant
    alone, but it is of less general importance than the declaration to
    which I have already referred, and I defer consideration of it until
    later in this speech.

    It will be convenient to dispose at once of some preliminary
    matters. In the first place, Mrs. Gillick's husband is not a party
    to the present proceedings, but we were informed that he is in
    full agreement with Mrs. Gillick's contention, and I proceed on
    that basis. Secondly, there is no suggestion that Mrs. Gillick's
    relationship with her daughters is other than normal and happy, nor
    is it suggested that there is any present likelihood of any of the
    daughters seeking contraceptive advice or treatment without the
    consent of their mother.

    Thirdly, I must mention a procedural matter. The
    declaration which is claimed against the D.H.S.S., to the effect
    that the advice given in the guidance was unlawful, amounts to an
    assertion that the Secretary of State for Health and Social
    Security has acted illegally, in the sense of ultra vires. The

    remedy claimed is in the field of public law and, since the
    decision of your Lordships' House in the case of O'Reilly v.
    Mackman
    [1983] 2 A.C. 237, it is one which should normally be
    claimed in an application for judicial review. But the writ and
    statement of claim in this action were issued on 5 August 1982,
    three months before the decision in O'Reilly, which was on 25
    November 1982. Accordingly, Mr. Laws, who appeared for the
    D.H.S.S., merely mentioned the procedural point but he did not
    submit that the procedure was out of order. I have had the
    benefit of reading in draft the speech prepared by my noble and
    learned friend Lord Scarman and I agree with him that, for the
    reasons explained by him, Mrs. Gillick was fully entitled to
    proceed in the case by ordinary action.

    The advice, the lawfulness of which is in dispute, is a
    revised version of part of a comprehensive Memorandum of
    Guidance on the family planning service which had been issued to
    health authorities in May 1974 under cover of a circular (H.S.C.
    (I.S.) 32) from the D.H.S.S. The Memorandum of Guidance was
    divided into a number of sections, one of which was section G
    which was headed "The Young." The revised section G, which
    contains the disputed advice, is as follows:

    "Clinic sessions should be available for people of all ages,
    but it may be helpful to make separate, less formal
    arrangements for young people. The staff should be
    experienced in dealing with young people and their problems.

    "There is widespread concern about counselling and
    treatment for children under 16. Special care is needed not
    to undermine parental responsibility and family stability.
    The Department would therefore hope that in any case
    where a doctor or other professional worker is approached
    by a person under the age of 16 for advice in these
    matters, the doctor, or other professional, will always seek
    to persuade the child to involve the parent or guardian (or
    other person in loco parentis) at the earliest stage of
    consultation, and will proceed from the assumption that it
    would be most unusual to provide advice about contraception
    without parental consent.

    "It is, however, widely accepted that consultations
    between doctors and patients are confidential; and the
    Department recognises the importance which doctors and
    patients attach to this principle. It is a principle which
    applies also to the other professions concerned. To abandon
    this principle for children under 16 might cause some not to
    seek professional advice at all. They could then be exposed
    to the immediate risks of pregnancy and of sexually-
    transmitted diseases, as well as other long-term physical,
    psychological and emotional consequences which are equally
    a threat to stable family life. This would apply particularly
    to young people whose parents are, for example,
    unconcerned, entirely unresponsive, or grossly disturbed.
    Some of these young people are away from their parents
    and in the care of local authorities or voluntary
    organisations standing in loco parentis.

    - 2 -

    "The Department realises that in such exceptional
    cases the nature of any counselling must be a matter for
    the doctor or other professional worker concerned and that
    the decision whether or not to prescribe contraception must
    be for the clinical judgment of a doctor."

    That advice emphasised, more strongly than section G in its
    original form had done, that the cases in which a doctor could
    properly advise a girl under 16 years of age about contraception
    without parental consent would be most unusual. If the advice had
    been contained in a legal document there might well have been
    room for argument as to its exact effect, but, in my view, it is
    perfectly clear that it would convey to any doctor or other person
    who read it that the decision whether or not to prescribe
    contraception for a girl under 16 was in the last resort a matter
    for the clinical judgment of a doctor, even if the girl's parents
    had not been informed that she had consulted the doctor, and even
    if they had expressed disapproval of contraception being prescribed
    for her. Mrs. Gillick objected to the guidance, in its amended
    form, and after some correspondence with the area health
    authority, she wrote to the acting area administrator on 3 March
    1981 a letter which included this paragraph:

    "I formally FORBID any medical staff employed by Norfolk
    A.H.A. to give any contraceptive or abortion advice or
    treatment whatsoever to my four daughters whilst they are
    under 16 years without my consent."

    Mrs. Gillick's youngest (fifth) daughter has been born since
    that letter was sent. The acting administrator replied on 9 March
    1981 acknowledging the letter and stating that the A.M.A. held to
    the view "that treatment prescribed by a doctor is a matter for
    that doctor's clinical judgment, taking into account all the factors
    of the case."

    On 5 August 1982 Mrs. Gillick began these proceedings
    against the area health authority and the D.H.S.S., in which she
    seeks the following declarations (as amended before the Master):

    "(i) A declaration against the [Area Health Authority] and
    the [D.H.S.S.] on a true construction of the said
    notice and in the events which have happened,
    including and in particular the publication and the
    circulation of the said notice, the said notice has no
    authority in law and gives advice which is unlawful
    and wrong, and which adversely affects or which may
    adversely affect the welfare of the plaintiff's said
    children, and/or the rights of the plaintiff as parent
    and custodian of the said children, and/or the ability
    of the plaintiff properly and effectively to discharge
    her duties as such parent and custodian;

    "(ii) A declaration against the [Area Health Authority] that
    no doctor or other professional person employed by
    the [Area Health Authority] either in the Family
    Planning Service or otherwise may give any
    contraceptive and/or abortion advice and/or treatment
    to any child of the plaintiff below the age of 16
    without the prior knowledge and consent of the said
    child's parent or guardian."

    - 3 -

    Woolf J. [1984] Q.B. 581 refused to grant the declarations
    sought by Mrs. Gillick and dismissed the action. The Court of
    Appeal (Eveleigh, Fox and Parker L.JJ.) [1985] 2 W.L.R. 413
    allowed the appeal and granted the declarations. Against that
    decision the D.H.S.S. now appeals.

    The central issue in the appeal is whether a doctor can
    ever, in any circumstances, lawfully give contraceptive advice or
    treatment to a girl under the age of 16 without her parents'
    consent. The effect of the Court of Appeal's judgment is to
    answer that question in the negative. The answer is subject
    certainly to one exception, in the case of an order by a competent
    court; this exception was recognised by Parker LJ. in the Court of
    Appeal, [1985] 2 W.L.R. 413, 420H, and it is accepted in Mrs.
    Gillick's printed case. But it is of theoretical rather than
    practical importance, because it would inevitably involve disclosing
    to the parents the doctor's advice to the girl, and thus would
    destroy its confidentiality, and also because the delay and expense
    of obtaining a court order makes frequent use of such procedure
    impracticable. There must, I think, be a second exception for
    cases in which the parents, or the sole surviving parent, have
    deliberately abandoned their parental responsibilities; in such cases
    it would, in my opinion, be wrong to allow them to emerge from
    the shadows solely in order to veto contraceptive advice or
    treatment for their daughter. But these exceptions do not touch
    the principle which is at issue in the appeal.

    The guidance is addressed to regional health authorities and
    other authorities concerned in administering the National Health
    Service ("N.H.S."), and the appeal therefore only directly concerns
    doctors and other persons working in the N.H.S. I shall refer
    throughout to doctors, to include bevitatis causa other professional
    persons working in the N.H.S.

    The first statutory provision for contraceptive advice and
    treatment in the N.H.S. was made by section 1 of the National
    Health Service (Family Planning) Act 1967. That section
    empowered local health authorities in England and Wales, with the
    approval of the Minister of Health, to make arrangements for
    giving advice on contraception, for medical examination of persons
    seeking such advice and for the supply of contraceptive substances
    and appliances. There appears to have been no similar provision
    applying to Scotland. The Act of 1967 was repealed by the
    National Health Service Reorganisation Act 1973 which, by section
    4, replaced the power of local health authorities to provide such
    advice and treatment with a duty on the Secretary of State to do
    so. A similar duty was placed on the Secretary of State for
    Scotland by section 8 of the National Health Service (Scotland)
    Act 1972. The 1973 provision for England and Wales has now been
    superseded by the National Health Service Act 1977 which by
    section 5(l)(b) imposes a duty on the Secretary of State:

    "to arrange, to such extent as he considers necessary to
    meet all reasonable requirements in England and Wales, for
    the giving of advice on contraception, the medical
    examination of persons seeking advice on contraception, the
    treatment of such persons and the supply of contraceptive
    substances and appliances."

    - 4 -

    These, and other, provisions show that Parliament regarded
    "advice" and "treatment" on contraception and the supply of
    appliances for contraception as essentially medical matters. So
    they are, but they may also raise moral and social questions on
    which many people feel deeply, and in that respect they differ
    from ordinary medical advice and treatment. None of the
    provisions to which I have referred placed any limit on the age (or
    the sex) of the persons to whom such advice or treatment might
    be supplied.

    Three strands of argument are raised by the appeal. These
    are:


    1. Whether a girl under the age of 16 has the legal
      capacity to give valid consent to contraceptive advice
      and treatment including medical examination.

    2. Whether giving such advice and treatment to a girl
      under 16 without her parents' consent infringes the
      parents' rights.

    3. Whether a doctor who gives such advice or treatment
      to a girl under 16 without her parents' consent incurs
      criminal liability.

    I shall consider these strands in order.

    1. The legal capacity of a girl under 16 to consent to
    contraceptive advice, examination and treatment.

    There are some indications in statutory provisions to which
    we were referred that a girl under 16 years of age in England and
    Wales does not have the capacity to give valid consent to
    contraceptive advice and treatment. If she does not have the
    capacity, then any physical examination or touching of her body
    without her parents' consent would be an assault by the examiner.
    One of those provisions is section 8 of the Family Law Reform
    Act 1969 which is in the following terms:

    "(1) The consent of a minor who has attained the age of
    16 years to any surgical, medical or dental treatment
    which, in the absence of consent, would constitute a
    trespass to his person, shall be as effective as it
    would be if he were of full age; and where a minor
    has by virtue of this section given an effective
    consent to any treatment it shall not be necessary to
    obtain any consent for it from his parent or guardian.

    1. In this section 'surgical, medical or dental treatment'
      includes . . .

    2. Nothing in this section shall be construed as making
      ineffective any consent which would have been
      effective if this section had not been enacted."

    The contention on behalf of Mrs. Gillick was that subsection
    (1) of section 8 shows that, apart from the subsection, the consent
    of a minor to such treatment would not be effective. But I do
    not accept that contention because subsection (3) leaves open the

    - 5 -

    question whether consent by a minor under the age of 16 would
    have been effective if the section had not been enacted. That
    question is not answered by the section, and subsection (1) is, in
    my opinion, merely for the avoidance of doubt.

    Another statutory provision which was referred to in this
    connection is the National Health Service (General Medical and
    Pharmaceutical Services) Regulations 1974 (S.I. 1974 No. 160) as
    amended by the National Health Service (General Medical and
    Pharmaceutical Services) Amendment Regulations 1975 (S.I. 1975
    No. 719). These regulations prescribe the mechanism by which the
    relationship of doctor and patient under the National Health
    Service is created. Contraceptive services, along with maternity
    medical services, are treated as somewhat apart from other
    medical services in respect that only a doctor who specially offers
    to provide contraceptive or maternity medical services is obliged
    to provide them. See the definition of "medical card" and
    "treatment" in regulation 2(1), regulations 6(l)(a) and 14(2)(a) and
    Schedule 1 paragraph 13. But nothing turns on this fact. Two
    points in those regulations have a bearing on the present question
    although, in my opinion, only an indirect bearing. The first is that
    by regulation 14 any "woman" may apply to a doctor to be
    accepted by him for the provision of contraceptive services. The
    word "woman" is not defined so as to exclude a girl under 16 or
    under any other age. But regulation 32 provides as follows:

    "An application to a doctor for inclusion on his list . . .
    may be made, either -

    (a) on behalf of any person under 16 years of age,
    by the mother, or in her absence, the father, or in
    the absence of both parents the guardian or other
    adult person who has the care of the child; or

    (b) on behalf of any other person who is incapable of
    making such an application by a relative or other
    adult person who has the care of such person; or . .
    ." (Emphasis added).

    The words in paragraph (b) which I have emphasised are
    said, by counsel for Mrs. Gillick, to imply that a person under 16
    years of age is incapable of applying to a doctor for services and
    therefore give some support to the argument on behalf of Mrs.
    Gillick. But I do not regard the implication as a strong one
    because the provision is merely that an application "may" be made
    by the mother or other parent or guardian and it applies to the
    doctor's list for the provision of all ordinary medical services as
    well as to his list for the provision of contraception services. I
    do not believe that a person aged 15r who may be living away
    from home, is incapable of applying on his own behalf for inclusion
    in the list of a doctor for medical services of an ordinary kind not
    connected with contraception.

    Another provision, in a different branch of medicine, which
    is said to carry a similar implication is contained in the Mental
    Health Act 1983 section 131 which provides for informal admission
    of patients to mental hospitals. It provides by subsection (2) that:

    - 6 -

    "In the case of a minor who has attained the age of 16
    years and is capable of expressing his own wishes, any such
    arrangements as are mentioned in subsection (1) above [for
    informal admission] may be made, carried out and
    determined notwithstanding any right of custody or control
    vested by law in his parent or guardian."

    That provision has only a remote bearing on the present
    question because there is no doubt that a minor under the age of
    16 is in the custody of his or her parents. The question is
    whether such custody necessarily involves the right to veto
    contraceptive advice or treatment being given to the girl.

    Reference was also made to the Education Act 1944 section
    48 which deals with medical inspection and treatment of pupils at
    state school. Subsection (3) of section 48 which imposes on the
    Secretary of State a duty to provide for medical and dental
    inspection of pupils was repealed and superseded by the National
    Health Service Reorganisation Act 1973 section 3 and Schedule 5.
    The Act of 1973 in turn was replaced by the National Health
    Service Act 1977 section 5(l)(a). Subsection (4) of Section 48 of
    the Education Act 1944 which has not been repealed imposes a
    duty on the Secretary of State to arrange for encouraging pupils
    to take advantage of any medical treatment provided under Section
    43 but it includes a proviso in the following terms:

    "Provided that if the parent of any pupil gives to the
    authority notice that he objects to the pupil availing himself
    of any medical treatment provided under this section, the
    pupil shall not be encouraged ... so to do."

    I do not regard that provision as throwing light on the
    present question. It does not prohibit a child under the stipulated
    age from availing himself of medical treatment or an education
    authority from providing it for him. If the child, without
    encouragement from the education authority, "wishes to avail
    himself of medical treatment" the section imposes no obstacle in
    his way. Accordingly, in my opinion, the proviso gives no support
    to the contention from Mrs. Gillick, but on the contrary points in
    the opposite direction.

    The statutory provisions to which I have referred do not
    differentiate so far as the capacity of a minor under 16 is
    concerned between contraceptive advice and treatment and other
    forms of medical advice and treatment. It would, therefore,
    appear that, if the inference which Mrs. Gillick's advisers seek to
    draw from the provisions is justified, a minor under the age of 16
    has no capacity to authorise any kind of medical advice or
    treatment or examination of his own body. That seems to me so
    surprising that I cannot accept it in the absence of clear
    provisions to that effect. It seems to me verging on the absurd
    to suggest that a girl or a boy aged 15 could not effectively
    consent, for example, to have a medical examination of some
    trivial injury to his body or even to have a broken arm set. Of
    course the consent of the parents should normally be asked, but
    they may not be immediately available. Provided the patient,
    whether a boy or a girl, is capable of understanding what is
    proposed, and of expressing his or her own wishes, I see no good
    reason for holding that he or she lacks the capacity to express

    - 7 -

    them validly and effectively and to authorise the medical man to
    make the examination or give the treatment which he advises.
    After all, a minor under the age of 16 can, within certain limits,
    enter into a contract. He or she can also sue and be sued, and
    can give evidence on oath. Moreover, a girl under 16 can give
    sufficiently effective consent to sexual intercourse to lead to the
    legal result that the man involved does not commit the crime of
    rape - see Reg, v. Howard [1966] 1 W.L.R. 13, 15 when Lord
    Parker C.3. said:

    "... in the case of a girl under 16 the prosecution, in
    order to prove rape, must prove either that she physically
    resisted, or if she did not, that her understanding and
    knowledge were such that she was not in a position to
    decide whether to consent or resist. . . There are many
    girls under 16 who know full well what it is all about and
    can properly consent."

    Accordingly, I am not disposed to hold now, for the first time,
    that a girl aged less than 16 lacks the power to give valid consent
    to contraceptive advice or treatment, merely on account of her
    age.

    Out of respect for the comprehensive and fully researched
    argument submitted by Mr. Laws for the D.H.S.S. I should notice
    briefly two old Acts to which he referred, but which do not
    appear to me to be helpful. One of these is the Abduction Act
    1557 (4 and 5 Ph. & M. c.3) for punishing "such as shall take away
    maidens that be inheritors, being within the age of 16 years, or
    that marry them, without consent of their parents." That Act was
    evidently passed for the protection of property rather than for
    protection of the virtue of maidens. It was repealed by the
    Offences Against the Person Act 1823 (9 Geo. 4, c.31). We were
    referred to section 20 of the Act of 1823, but that section was
    concerned only with punishing abduction of any unmarried girl
    under the age of 16 and appears to me to have little or no
    bearing on the present problem.

    On this part of the case accordingly I conclude that there is
    no statutory provision which compels me to hold that a girl under
    the age of 16 lacks the legal capacity to consent to contraceptive
    advice, examination and treatment provided that she has sufficient
    understanding and intelligence to know what they involve. I can
    deal with the case law more conveniently in what follows.

    2. The parents' rights and duties in respect of medical
    treatment of their child. "

    The amended guidance expressly states that the doctor will
    proceed from the assumption that it would be "most unusual" to
    provide advice about contraception without parental consent. It
    also refers to certain cases where difficulties might arise if the
    doctor refused to promise that his advice would remain
    confidential and it concludes that the department realises that "in
    such exceptional cases" the decision whether or not to prescribe
    contraception must be for the clinical judgment of a doctor. Mrs.
    Gillick's contention that the guidance adversely affects her rights
    and duties as a parent must, therefore, involve the assertion of an
    absolute right to be informed of and to veto such advice or

    - 8 -

    treatment being given to her daughters even in the "most unusual"
    cases which might arise (subject, no doubt, to the qualifications
    applying to the case of court order or to abandonment of parents'
    duties).

    It was, I think, accepted both by Mrs. Gillick and by the
    D.H.S.S., and in any event I hold, that parental rights to control a
    child do not exist for the benefit of the parent. They exist for
    the benefit of the child and they are justified only in so far as
    they enable the parent to perform his duties towards the child,
    and towards other children in the family. If necessary, this
    proposition can be supported by reference to Blackstone
    Commentaries,
    17th ed. (1830), vol. 1, p. 452, where he wrote
    "The power of parents over their children is derived from . . .
    their duty." The proposition is also consistent with the provisions
    of the Guardianship of Minors Act 1971 section 1 as follows:

    "Where in any proceedings before any court . . . -

    (a) the custody or upbringing of a minor; or ... is in
    question, the court, in deciding that question, shall
    regard the welfare of the minor as the first and
    paramount consideration, and shall not take into
    consideration whether from any other point of view
    the claim of the father, or any right at common law
    possessed by the father, in respect of such custody,
    upbringing, administration or application is superior to
    that of the mother, or the claim of the mother is
    superior to that of the father."

    From the parents' right and duty of custody flows their
    right and duty of control of the child, but the fact that custody is
    its origin throws but little light on the question of the legal
    extent of control at any particular age. Counsel for Mrs. Gillick
    placed some reliance on the Children Act 1975. Section 85(1)
    provides that in that Act the expression "the parental rights and
    duties" means "all the rights and duties which by law the mother
    and father have in relation to a legitimate child and his property,"
    but the subsection does not define the extent of the rights and
    duties which by law the mother and father have. Section 86 of
    the Act provides:

    "In this Act, unless the context otherwise requires, 'legal
    custody' means, as respects a child, so much of the parental
    rights and duties as relate to the person of the child
    (including the place and manner in which his time is spent)."

    In the Court of Appeal Parker L.J. attached much
    importance to that section especially to the words in brackets.
    He considered that the right relating to the place and manner in
    which the child's time is spent included the right, as he put it,
    "completely to control the child" subject of course always to the
    intervention of the court. The learned Lord Justice went on thus
    at [1985] 2 W.L.R. 413, 423A:

    "Indeed there must, it seems to me, be such a right from
    birth to a fixed age unless whenever, short of majority, a
    question arises it must be determined, in relation to a
    particular child and a particular matter, whether he or she


    - 9 -

    is of sufficient understanding to make a responsible and
    reasonable decision. This alternative appears to me
    singularly unattractive and impracticable, particularly in the
    context of medical treatment."

    My Lords, I have, with the utmost respect reached a
    different conclusion from that of the learned Lord Justice. It is,
    in my view, contrary to the ordinary experience of mankind, at
    least in Western Europe in the present century, to say that a child
    or a young person remains in fact under the complete control of
    his parents until he attains the definite age of majority, now 18 in
    the United Kingdom, and that on attaining that age he suddenly
    acquires independence. In practice most wise parents relax their
    control gradually as the child develops and encourage him or her
    to become increasingly independent. Moreover, the degree of
    parental control actually exercised over a particular child does in
    practice vary considerably according to his understanding and
    intelligence and it would, in my opinion, be unrealistic for the
    courts not to recognise these facts. Social customs change, and
    the law ought to, and does in fact, have regard to such changes
    when they are of major importance. An example of such
    recognition is to be found in the view recently expressed in your
    Lordships' House by my noble and learned friend Lord Brandon of
    Oakbrook, with which the other noble and learned Lords who were
    present agreed, in Reg, v. D [1984] 1 A.C. 778, 806 D. Dealing
    with the question of whether the consent of a child to being taken
    away by a stranger would be a good defence to a charge of
    kidnapping, my noble and learned friend said:

    "In the case of a very young child, it would not have the
    understanding or the intelligence to give its consent, so that
    absence of consent would be a necessary inference from its
    age. In the case of an older child, however, it must, I
    think be a question of fact for a jury whether the child
    concerned has sufficient understanding and intelligence to
    give its consent; if, but only if, the jury considers that a
    child has these qualities, it must then go on to consider
    whether it has been proved that the child did not give its
    consent. While the matter will always be for the jury alone
    to decide, I should not expect a jury to find at all
    frequently that a child under 14 had sufficient understanding
    and intelligence to give its consent."

    That expression of opinion seems to me entirely
    contradictory of the view expressed by Cockburn C.J. in Reg, v.
    Howes
    (1860) 1 E. & E. 332, 336-337:

    "We repudiate utterly, as most dangerous, the notion that
    any intellectual precocity in an individual female child can
    hasten the period which appears to have been fixed by
    statute for the arrival at the age of discretion; for that
    very precocity, if uncontrolled, might very probably lead to
    her irreparable injury. The legislature has given us a guide,
    which we may safely follow, in pointing out 16 as the age
    up to which the father's right to custody of his female child

    - 10 -

    is to continue; and short of which such a child has no
    discretion to consent to leaving him."

    The question for decision in that case was different from
    that in the present, but the view that the child's intellectual
    ability is irrelevant cannot, in my opinion, now be accepted. It is
    a question of fact for the judge (or jury) to decide whether a
    particular child can give effective consent to contraceptive
    treatment.

    In times gone by the father had almost absolute authority
    over his children until they attained majority. A rather
    remarkable example of such authority being upheld by the court
    was the case of In re Agar-Ellis (1883) 24 Ch.D. 317 which was
    much relied on by the Court of Appeal. The father in that case
    restricted the communication which his daughter aged 17 was
    allowed to have with her mother, against whose moral character
    nothing was alleged, to an extent that would be universally-
    condemned today as quite unreasonable. The case has been much
    criticised in recent years and, in my opinion, with good reason. In
    Hewer v. Bryant [1970] 1 Q.B. 357,369 Lord Denning M.R. said:

    "I would get rid of the rule in In re Agar-Ellis and of the
    suggested exceptions to it. That case was decided in the
    year 1883. It reflects the attitude of a Victorian parent
    towards his children. He expected unquestioning obedience
    to his commands. If a son disobeyed, his father would cut
    him off with a shilling. If a daughter had an illegitimate
    child, he would turn her out of the house. His power only
    ceased when the child became 21. I decline to accept a
    view so much out of date. The common law can, and
    should, keep pace with the times. It should declare, in
    conformity with the recent Report of the Committee on the
    Age of Majority [Cmnd. 3342, 1967], that the legal right of
    a parent to the custody of a child ends at the 18th
    birthday: and even up till then, it is a dwindling right which
    the courts will hesitate to enforce against the wishes of the
    child, and the more so the older he is. It starts with a
    right of control and ends with little more than advice."

    I respectfully agree with every word of that and especially
    with the description of the father's authority as a dwindling right.
    In J. v. C. [1970] A.C. 668 Lord Guest and Lord MacDermott
    referred to the decision in Agar-Ellis as an example of the almost
    absolute power asserted by the father over his children before the
    Judicature Act 1873 and plainly thought such an assertion was out
    of place at the present time - see Lord MacDermott at pp. 703-
    704. In Reg, v. D. [1984] A.C. 778 Lord Brandon of Oakbrook
    cited Agar-Ellis as an example of the older view of a father's
    authority which his Lordship and the other members of the House
    rejected. In my opinion, the view of absolute paternal authority
    continuing until a child attains majority which was applied in
    Agar-Ellis is so out of line with present day views that it should
    no longer be treated as having any authority. I regard it as a
    historical curiosity. As Fox L.J. pointed out in the Court of
    Appeal [1985] 2 W.L.R. 413, 439D, the Agar-Ellis cases (1878) 10
    Ch.D. 49; 24 Ch.D. 317 seemed to have been regarded as
    somewhat extreme even in their own day, as they were quickly
    followed by the Guardianship of Infants Act 1886 (49 & 50 Vict.
    c.27) which, by section 5, provided that the court may:

    - 11 -

    "upon the application of the mother of any infant [whether
    over 16 or not] make such order as it may think fit
    regarding the custody of such infant and the right of access
    thereto of either parent, having regard to the welfare of
    the infant,
    and to the conduct of the parents, . . ."
    (Emphasis added).

    Once the rule of the parents' absolute authority over minor
    children is abandoned, the solution to the problem in this appeal
    can no longer be found by referring to rigid parental rights at any
    particular age. The solution depends upon a judgment of what is
    best for the welfare of the particular child. Nobody. doubts,
    certainly I do not doubt, that in the overwhelming majority of
    cases the best judges of a child's welfare are his or her parents.
    Nor do I doubt that any important medical treatment of a child
    under 16 would normally only be carried out with the parents'
    approval. That is why it would and should be "most unusual" for a
    doctor to advise a child without the knowledge and consent of the
    parents on contraceptive matters. But, as I have already pointed
    out, Mrs. Gillick has to go further if she is to obtain the first
    declaration that she seeks. She has to justify the absolute right
    of veto in a parent. But there may be circumstances in which a
    doctor is a better judge of the medical advice and treatment
    which will conduce to a girl's welfare than her parents. It is
    notorious that children of both sexes are often reluctant to confide
    in their parents about sexual matters, and the D.H.S.S. guidance
    under consideration shows that to abandon the principle of
    confidentiality for contraceptive advice to girls under 16 might
    cause some of them not to seek professional advice at all, with
    the consequence of exposing them to "the immediate risks of
    pregnancy and of sexually-transmitted diseases." No doubt the risk
    could be avoided if the patient were to abstain from sexual
    intercourse, and one of the doctor's responsibilities will be to
    decide whether a particular patient can reasonably be expected to
    act upon advice to abstain. We were told that in a significant
    number of cases such abstinence could not reasonably be expected.
    An example is the case of In re P (A Minor) (1981) 80 L.G.R. 301
    in which Butler-Sloss J. ordered that a girl aged 15 who had been
    pregnant for the second time and who was in the care of a local
    authority should be fitted with a contraceptive appliance because,
    as the learned judge is reported to have said at p. 312:

    "I assume that it is impossible for this local authority to
    monitor her sexual activities, and, therefore, contraception
    appears to be the only alternative."

    There may well be other cases where the doctor feels that
    because the girl is under the influence of her sexual partner or for
    some other reason there is no- realistic prospect of her abstaining
    from intercourse. If that is right it points strongly to the
    desirability of the doctor being entitled in some cases, in the girl's
    best interest, to give her contraceptive advice and treatment if
    necessary without the consent or even the knowledge of her
    parents. The only practicable course is, in my opinion, to entrust
    the doctor with a discretion to act in accordance with his view of
    what is best in the interests of the girl who is his patient. He
    should, of course, always seek to persuade her to tell her parents
    that she is seeking contraceptive advice, and the nature of the
    advice that she receives. At least he should seek to persuade her

    - 12 -

    to agree to the doctor's informing the parents. But there may
    well be cases, and I think there will be some cases, where the girl
    refuses either to tell the parents herself or to permit the doctor
    to do so and in such cases, the doctor will, in my opinion, be
    justified in proceeding without the parents' consent or even
    knowledge provided he is satisfied on the following matters:

    1. that the girl (although under 16 years of age) will
      understand his advice;

    2. that he cannot persuade her to inform her parents or
      to allow him to inform the parents that she is
      seeking contraceptive advice;

    3. that she is very likely to begin or to continue having
      sexual intercourse with or without contraceptive
      treatment;

    (4) that unless she receives contraceptive advice or
    treatment her physical or mental health or both are
    likely to suffer;

    (5) that her best interests require him to give her
    contraceptive advice, treatment or both without the
    parental consent.

    That result ought not to be regarded as a licence for
    doctors to disregard the wishes of parents on this matter whenever
    they find it convenient to do so. Any doctor who behaves in such
    a way would, in my opinion, be failing to discharge his professional
    responsibilities, and I would expect him to be disciplined by his
    own professional body accordingly. The medical profession have in
    modern times come to be entrusted with very wide discretionary
    powers going beyond the strict limits of clinical judgment and, in
    my opinion, there is nothing strange about entrusting them with
    this further responsibility which they alone are in a position to
    discharge satisfactorily.

    3. Is a doctor who gives contraceptive advice or treatment to
    a girl under 16 without her parents' consent likely to incur
    criminal liability?

    The submission was made to Woolf J. on behalf of Mrs.
    Gillick that a doctor who provided contraceptive advice and
    treatment to a girl under 16 without her parents' authority would
    be committing an offence under section 28 of the Sexual Offences
    Act 1956 by aiding and abetting the commission of unlawful sexual
    intercourse. When the case reached the Court of Appeal counsel
    on both sides conceded that whether a doctor who followed the
    guidelines would be committing an offence or not would depend on
    the circumstances. It would depend upon the doctor's intentions;
    this appeal is concerned with doctors who honestly intend to act in
    the best interests of the girl, and I think it is unlikely that a
    doctor who gives contraceptive advice or treatment with that
    intention would commit an offence under section 28. It must be
    remembered that a girl under 16 who has sexual intercourse does
    not thereby commit an offence herself, although her partner does -
    see the Sexual Offences Act 1956 sections 5 and 6. In any event,
    even if the doctor would be committing an offence, the fact that

    - 13 -

    he had acted with the parents' consent would not exculpate him as
    Woolf 3. pointed out [1984] Q.B. 581, 595G. Accordingly, I regard
    this contention as irrelevant to the question that we have to
    answer in this appeal. Parker L.J. in the Court of Appeal dealt
    at some length with the provisions of criminal law intended to
    protect girls under the age of 16 from being seduced, and perhaps
    also to protect them from their own weakness. The learned Lord
    Justice at [1985] 2 W.L.R. 413, 435B expressed his conclusion on
    this part of the case as follows:

    "It appears to me that it is wholly incongruous, when the
    act of intercourse is criminal, when permitting it to take
    place on one's premises is criminal and when, if the girl
    were under 13, failing to report an act of intercourse to the
    police would up to 1967 have been criminal, that either the
    . department [or] the area health authority should provide
    facilities which would enable girls under 16 the more readily
    to commit such acts. It seems to me equally incongruous
    to assert that doctors have the right to accept the young,
    down, apparently to any age, as patients, and to provide
    them with contraceptive advice and treatment without
    reference to their parents and even against their known
    wishes."

    My Lords, the first of those two sentences is directed to
    the question, which is not in issue in this appeal, of whether
    contraceptive facilities should be available at ail under the
    National Health Service for girls under 16. I have already
    explained my reasons for thinking that the legislation does not
    limit the duty of providing such facilities to women of 16 or
    more. The second sentence, which does bear directly on the
    question in the appeal, does not appear to me to follow necessarily
    from the first and with respect I cannot agree with it. If the
    doctor complies with the first of the conditions which I have
    specified, that is to say if he satisfies himself that the girl can
    understand his advice there will be no question of his giving
    contraceptive advice to very young girls.

    For those reasons I do not consider that the guidance
    interferes with the parents' rights.

    The Second Declaration

    The second declaration is directed only against the area
    health authority. Its practical importance would be minimal
    because doctors are not "employed" by the area health authority in
    the family planning service and, if they were, the declaration
    could easily be avoided by the girl going to a doctor in a different
    area. The Court of Appeal made the declaration sought, and the
    authority has not appealed against its decision. I am, therefore,
    of opinion that we should not reverse the decision of the Court of
    Appeal on this part of the case. But it is clearly inconsistent with
    the views I have expressed on the first declaration, and I agree
    with Lord Scarman that it should be overruled.

    I would allow the appeal against the first declaration
    granted by the Court of Appeal, and I would overrule the second
    declaration as being erroneous.

    - 14 -

    LORD SCARMAN

    My Lords,

    I have had the advantage of reading in draft the speech
    delivered by my noble and learned friend, Lord Fraser of
    Tullybelton. Agreeing with it, I shall endeavour in delivering my
    opinion to avoid repetition. The importance of the case is,
    however, such that I believe it necessary, even at the cost of
    some repetition, to deliver my opinion in my own words. The case
    is the beginning, not the conclusion, of a legal development in a
    field glimpsed by one or two judges in recent times (notably
    Butler-Sloss 3. In re P (A Minor) (1981) 80 L.G.R. 301) but not yet
    fully explored. Mrs. Gillick, even though she may lose the appeal,
    has performed a notable public service in directing judicial
    attention to the problems arising from the interaction of parental
    right and a doctor's duty in a field of medicine unknown to our
    fathers but of immense consequence to our society. The
    contraceptive pill has introduced a new independence, and offers
    new options, for women: but has it in the process undermined
    parental right and duty? In my judgment, the answer is "no", even
    though parental right may not be as extensive or as long lasting as
    she believes it to be.

    Victoria Gillick, mother of five daughters under the age of
    16, challenges the lawfulness of a memorandum of guidance issued
    by the Department of Health and Social Security which she says
    encourages and in certain circumstances recommends health
    authorities, doctors, and others concerned in operating the
    department's family planning services to provide contraceptive
    advice and treatment to girls under the age of 16 without the
    knowledge or consent of a parent. Mrs. Gillick is a wife and
    mother living in a united family with her husband and their
    children. The husband supports the action being taken, as they
    both see it, to protect their daughters. No further need be said
    of their family situation in deciding this appeal.

    Mrs. Gillick began her proceedings by the issue of a writ
    against two defendants, the health authority for the area in which
    she lives and the department. She claims in an ordinary civil
    action declaratory relief against both defendants that the guidance
    is unlawful, and against the area health authority alone a
    declaration that no doctor or other person in its employ may give
    contraception or abortion advice to Mrs. Gillick's children under
    the age of 16 without her prior knowledge and consent. The area
    health authority has taken no part in the litigation, but the
    department has fought the case strenuously. The appeal to the
    House is that of the department: the health authority has not
    appealed and is not represented.

    The written case submitted on Mrs. Gillick's behalf to the
    House formulates three propositions of law, any one of which, if
    made good, would suffice to entitle her to relief. They are as
    follows:

    "(i) parental rights should be protected from any invasion
    or interference neither authorised by a competent
    court nor expressly authorised by statute: [the
    parental rights case]

    - 15 -

    "(ii) the provision of contraceptive treatment to girls
    under the age of 16 either constitutes criminal
    conduct in itself or is so closely analogous thereto as
    to be contrary to public policy: [the criminal law
    case]

    "(iii) a girl below the age of 16 is not capable in law of
    giving a valid consent to medical treatment and in
    the particular context of this case to contraceptive or
    abortion treatment." [the age of consent point].

    Before, however, considering these propositions, it is necessary to
    clear out of the way certain procedural questions, which, though
    not urged upon our attention, do call for a brief consideration.

    Procedure

    Three procedural questions have emerged in the course of
    the litigation. First, Mr. Simon Brown, who before his elevation
    to the bench had the conduct of the case as counsel for the
    department, raised at the trial the question as to the propriety of
    the civil court granting a declaration in a case which involved the
    criminal law. The judge saw no reason why he should be inhibited
    on this ground from dealing with the issues in the action; and I
    agree with him. It was not contended that the issue of the
    guidance was itself a crime: the case against the department was
    simply that the guidance, if followed, would result in unlawful acts
    and that the department by issuing it was exercising a statutory
    discretion in a wholly unreasonable way; i.e. the classical
    "Wednesbury" case for judicial review: Associated Provincial
    Picture Houses Ltd, v. Wednesbury Corporation
    [1948] 1 K.B. 223.

    The second question is as to the propriety of proceeding in
    this case by ordinary civil action. Should not Mrs. Gillick have
    proceeded by way of judicial review under R.S.C. Ord. 53? No
    point was taken at trial or in the Court of Appeal against Mrs.
    Gillick that she should have proceeded not by issuing a writ, but
    by applying for judicial review. Woolf J. did, however, mention
    the matter only to hold that there was a relevant precedent for
    proceeding by writ in this House's decision in Royal College of
    Nursing of the United Kingdom v. Department of Health and Social
    Security
    [1981] A.C. 800. "

    The point having been brought to the attention of the House
    I think it desirable to consider it if only because of the later
    decision of the House in O'Reilly v. Mackman [1983] 2 A.C. 237,
    where Lord Diplock, with whose opinion their other Lordships
    agreed, laid down a rule in these terms at p. 285D:

    "Now that those disadvantages [i.e. those previously
    associated with prerogative order procedure] to applicants
    have been removed and all remedies for infringements of
    rights protected by public law can be obtained upon an
    application for judicial review, as can also remedies for
    infringements of rights under private law if such
    infringements should also be involved, it would in my view
    as a general rule [emphasis supplied] be contrary to public
    policy, and as such an abuse of the process of the court, to

    - 16 -

    permit a person seeking to establish that a decision of a
    public authority infringed rights to which he was entitled to
    protection under public law to proceed by way of an
    ordinary action and by this means to evade the provisions of
    Order 53 for the protection of such authorities."

    If there be in the present case an abuse of the process of
    the court, the House cannot overlook it, even if the parties are
    prepared to do so, and even though the writ in this case was
    issued before the decision of the House in O'Reilly's case [1983] 2
    A.C. 237.

    Mrs. Gillick's action is essentially to protect what she
    alleges to be her rights as a parent under private law. Although
    she is proceeding against two public authorities and invokes the
    criminal law and public policy in support of her case, she claims
    as a parent whose right of custody and guardianship in respect of
    her children under the age of 16 is (she says) threatened by the
    guidance given by the department to area health authorities,
    doctors, and others concerned in the provision by the department
    of a family health service. This is a very different case from
    O'Reilly [1983] 2 A.C. 237 where it could not be contended that
    there was any infringement or threat of infringment of any right
    derived from private law. For the appellants in O'Reilly's case
    were convicted prisoners faced with forfeiture of remission, and
    they were held to have not a right to remission of their prison
    sentences but merely "a legitimate expectation" which could, if the
    necessary facts were established, entitle them "to a remedy in
    public law." They had, therefore, no private right in the matter,
    and could rely only on the "public law" doctrine of legitimate
    expectation.

    It is unnecessary to embark upon an analysis of the newly
    fledged distinction in English law between public and private law,
    for I do not see Mrs. Gillick's claim as falling under the embargo
    imposed by O'Reilly's case [1983] 2 A.C. 237. If I should be
    wrong in this view, I would nevertheless think that the private law
    content of her claim was so great as to make her case an
    exception to the general rule. Lord Diplock at p. 285F recognised
    that the general rule which he was laying down admitted of
    exceptions including cases:

    "where the invalidity of [the public authority's] decision
    arises as a collateral issue in a claim for infringement of a
    right of the plaintiff arising under private law, or where
    none of the parties objects to the adoption of the procedure
    by writ or originating summons."

    Both these exceptions can be said to apply in the present case.
    Like Lord Diplock, I think that procedural problems in the field of
    public law must be left to be decided on a case to case basis.
    Mrs. Gillick was, in my opinion, fully entitled to proceed by
    ordinary action, even though she could also have proceeded by way
    of judicial review.

    The third and final procedural question is a mere
    technicality: as such, it creates - no lawyer would be surprised -
    more trouble than the other two. If the House should allow the
    department's
    appeal against the guidance declaration what is to be

    - 17 -

    done about the other declaration granted exclusively against the
    area health authority? As a matter of common sense, if Mrs.
    Gillick fails to establish that the department's guidance is unlawful
    she cannot upon the evidence in this case establish her entitlement
    to the other declaration against the health authority. The Court
    of Appeal treated the second declaration as consequential upon the
    guidance declaration, which upon the evidence they were plainly,
    right to do. But there is a difficulty in allowing an appeal where
    there is no appellant and no appeal. Fortunately in this case
    there is no issue between the parties as to costs. If the
    department succeeds, it does not ask for costs against Mrs. Gillick
    here or below: and the area health authority has incurred no
    costs. Two courses are open to the House: one would be to
    ignore the technicalities, allow the appeal (if that be the view of
    the House), and set aside both declarations: the other, which is
    strictly correct, would be to allow the department's appeal and to
    declare that the reasoning was also applicable to the Court of
    Appeal's decision in favour of the health authority which must,
    therefore, be held to be overruled. If the second course should be
    taken, the only order to be made by the House would be to allow
    the department's appeal and set aside the "guidance" declaration.
    I favour the second course.

    The Department's Guidance

    In 1974 the department assumed statutory responsibility for
    the provision of family planning services on a national basis. This
    involved a reorganisation which included a transfer of services
    from the agencies previously concerned to area health authorities.
    In the course of the reorganisation which took some two years to
    complete the department issued guidance as to the duties and
    responsibilities of doctors and others concerned with the provision
    of such services. It was empowered so to do by its assumption,
    pursuant to statute, of responsibility for the provision of such
    services. In May 1974 the department circulated a memorandum of
    guidance HN(80)46: it included a section (section G.) as to the
    provision of services to young people. The text of section G.
    aroused some public concern, and in December 1980 a revised
    section G. was issued to replace the earlier text. It is this
    revision which lies at the heart of the case, being the subject of
    Mrs. Gillick's challenge. I set it out in full:

    "REVISED SECTION G - THE YOUNG

    "Clinic sessions should be available for people of all ages,
    but it may be helpful to make separate, less formal
    arrangements for young people. The staff should be
    experienced in dealing with young people and their problems.

    "There is widespread concern about counselling and
    treatment for children under 16. Special care is needed not
    to undermine parental responsibility and family stability.
    The Department would therefore hope that in any case
    where a doctor or other professional worker is approached
    by a person under the age of 16 for advice in these
    matters, the doctor, or other professional, will always seek
    to persuade the child to involve the parent or guardian (or
    other person in loco parentis) at the earliest stage of
    consultation, and will proceed from the assumption that it

    - 18 -

    would be most unusual to provide advice about contraception
    without parental consent.

    "It is, however, widely accepted that consultations between
    doctors and patients are confidential; and the Department
    recognises the importance which doctors and patients attach
    to this principle. It is a principle which applies also to the
    other professions concerned. To abandon this principle for
    children under 16 might cause some not to seek professional
    advice at all. They could then be exposed to the immediate
    risks of pregnancy and of sexually-transmitted diseases, as
    well as other long-term physical, psychological and emotional
    consequences which are equally a threat to stable family
    life. This would apply particularly to young people whose
    parents are, for example, unconcerned, entirely unresponsive,
    or grossly disturbed. Some of these young people are away
    from their parents and in the care of local authorities or
    voluntary organisations standing in loco parentis.

    "The Department realises that in such exceptional cases the
    nature of any counselling must be a matter for the doctor
    or other professional worker concerned and that the decision
    whether or not to prescribe contraception must be for the
    clinical judgment of a doctor."

    The first question in the appeal is simply: what is the true
    meaning of this text? Does it, or does it not, permit doctors
    concerned in the provision of a statutory service to prescribe
    contraceptive treatment for a girl under 16 without the knowledge
    and consent of her parents? And, if it does, in what
    circumstances?

    There can be no doubt that it does permit doctors to
    prescribe in certain circumstances contraception for girls under 16
    without the knowledge and consent of a parent or guardian. (In
    this opinion I shall use the term "parent" to include "guardian").
    The text is not, however, clear as to the circumstances (variously
    described as "unusual" and "exceptional") which justify a doctor in
    so doing. The House must be careful not to construe the guidance
    as though it was a statute or even to analyse it in the way
    appropriate to a judgment. The question to be asked is: what
    would a doctor understand to be the guidance offered to him, if
    he should be faced with a girl under 16 seeking contraceptive
    treatment without the knowledge or consent of her parents?

    He would know that it was his duty to seek to persuade the
    girl to let him bring into consultation her parents (or one of
    them). If she refused, he (or the counsellor to whom the girl had
    gone) must ask himself whether the case was one of those
    exceptional cases in which the guidance permitted a doctor to
    prescribe contraception without the knowledge or consent of a
    parent (provided always that in the exercise of his clinical
    judgment he thought this course to be in the true interest of his
    patient). In my judgment the guidance clearly implies that in
    exceptional cases the parental right to make decisions as to the
    care of their children, which derives from their right of custody,
    can lawfully be overridden, and that in such cases the doctor may
    without parental consultation or consent prescribe contraceptive
    treatment in the exercise of his clinical judgment. And the

    - 19 -

    guidance reminds the doctor that in such cases he owes the duty
    of confidentiality to his patient, by which is meant that the doctor
    would be in breach of his duty to her if he did communicate with
    her parents.

    The guidance leaves two areas of the doctor's responsibility
    in some obscurity. Though it provides illustrations of exceptional
    cases, it offers no definition. And it gives no clue as to what is
    meant by "clinical judgment" other than that it must at least
    include the professional judgment of a doctor as to what is the
    medically appropriate advice or treatment to be offered to his
    patient. .

    This lack of definition does not, in my judgment, assist Mrs.
    Gillick. If, contrary to her submission, the law recognises that
    exceptional cases can arise in which it is lawful for a doctor to
    prescribe contraceptive treatment for a girl under 16 without the
    knowledge and consent of a parent, the guidance would be within
    the law notwithstanding its lack of precision, unless its vagueness
    created so obscure a darkness that it could reasonably be
    understood by a doctor as authorising him to prescribe without the
    parent's consent whenever he should think fit.

    I do not find upon a fair reading of the guidance anything
    to obscure or confuse its basic message that a doctor is only in
    exceptional circumstances to prescribe contraception for a young
    person under the age of 16 without the knowledge and consent of
    a parent. No reasonable person could read it as meaning that the
    doctor's discretion could ordinarily override parental right.
    Illustrations are given in the text of exceptional cases in which
    the doctor may take the "most unusual" course of not consulting
    the parent. Only in exceptional cases does the guidance
    contemplate him exercising his clinical judgment without the
    parent's knowledge and consent. Lastly, there really can be no
    compulsion in law upon a government department to spell out to a
    doctor what is meant by "clinical judgment."

    The Question in the Appeal

    It is only if the guidance permits or encourages unlawful
    conduct in the provision of contraceptive services that it can be
    set aside as being the exercise of a statutory discretionary power
    in an unreasonable way.

    The question, therefore, for the House is - can a doctor in
    any circumstances lawfully prescribe contraception for a girl under
    16 without the knowledge and consent of a parent?

    Before discussing the question, I put out of the way the two
    exceptions which I understand both parties to the appeal accept?
    namely the order of a competent court, and emergency. Nobody
    disputes the existence of the court exception, nor does the other
    situation call for more than a brief mention.

    If, as is clear in the light of section 5 of the National
    Health Service Act 1977 (re-enacting earlier legislation) and
    section 41 of the National Health Service (Scotland) Act 1978,
    contraceptive medical treatment is recognised as a legitimate and

    - 20 -

    beneficial treatment in cases in which it is medically indicated, it
    must be an available option for the doctor in an emergency where
    treatment is urgently needed and the consent of the patient or his
    parent cannot be obtained either in time or at all. And the case
    of a teenage girl abandoned by her parents and not yet received
    into the care of a local authority or placed under the protection
    of a responsible adult in loco parentis can be seen to be a true
    emergency. Both Mrs. Gillick, as I understand her case, and the
    department accept these exceptions to the general rule that a
    parent must be consulted and give consent and I say no more than
    that it would be unthinkable for the law not to recognise them.

    Parental Right and the Age of Consent

    Mrs. Gillick relies on both the statute law and the case law
    to establish her proposition that parental consent is in all other
    circumstances necessary. The only statutory provision directly in
    point is section 8 of the Family Law Reform Act 1969.
    Subsection (1) of the section provides that the consent of a minor
    who has attained the age of 16 to any surgical, mental, or dental
    treatment which in the absence of consent would constitute a
    trespass to his person shall be as effective as if he were of full
    age and that the consent of his parent or guardian need not be
    obtained. Subsection (3) of the section provides that:

    "Nothing in this section shall be construed as making
    ineffective any consent which would have been effective if
    this section had not been enacted."

    I cannot accept the submission made on Mrs. Gillick's behalf that
    subsection (1) necessarily implies that prior to its enactment the
    consent of a minor to medical treatment could not be effective in
    law. Subsection (3) leaves open the question whether the consent
    of a minor under 16 could be an effective consent. Like my noble
    and learned friend, Lord Fraser of Tullybelton, I read the section
    as clarifying the law without conveying any indication as to what
    the law was before it was enacted. So far as minors under 16 are
    concerned, the law today is as it was before the enactment of the
    section.

    Nor do I find in the provisions of the statute law to which
    Parker L.J. refers in his judgment in the Court of Appeal [1985] 2
    W.L.R. 413 any encouragement, let alone any compelling reason,
    for holding that Parliament has accepted that a child under 16
    cannot consent to medical treatment. I respectfully agree with
    the reasoning and conclusion of my noble and learned friend, Lord
    Fraser of Tullybelton, on this point.

    The law has, therefore, to be found by a search in the
    judge-made law for the true principle. The legal difficulty is that
    in our search we find ourselves in a field of medical practice
    where parental right and a doctor's duty may point us in different
    directions. This is not surprising. Three features have emerged in
    today's society which were not known to our predecessors:- (1)
    contraception as a subject for medical advice and treatment; (2)
    the increasing independence of young people; and (3) the changed
    status of women. In times past contraception was rarely a matter
    for the doctor: but with the development of the contraceptive pill

    - 21 -

    for women it has become part and parcel of every-day medical
    practice, as is made clear by the Department's Handbook of
    Contraceptive Practice
    (1984 revision), particularly para. 1.2.
    Family planning services are now available under statutory powers
    to all without any express limitation as to age or marital status.
    Young people, once they have attained the age of 16, are capable
    of consenting to contraceptive treatment, since it is medical
    treatment: and, however extensive be parental right in the care
    and upbringing of children, it cannot prevail so as to nullify the
    16-year's old capacity to consent which is now conferred by
    statute. Furthermore, women have obtained by the availability of
    the pill a choice of life-style with a degree of independence and
    of opportunity undreamed of until this generation and greater, I
    would add, than any law of equal opportunity could by itself
    effect.

    The law ignores these developments at its peril. The
    House's task, therefore, as the supreme court in a legal system
    largely based on rules of law evolved over the years by the
    judicial process is to search the overfull and cluttered shelves of
    the law reports for a principle, or set of principles recognised by
    the judges over the years but stripped of the detail which,
    however appropriate in their day, would, if applied today, lay the
    judges open to a justified criticism for failing to keep the law
    abreast of the society in which they live and work.

    It is, of course, a judicial common place to proclaim the
    adaptability and flexibility of the judge-made common law. But
    this is more frequently proclaimed than acted upon. The mark of
    the great judge from Coke through Mansfield to our day has been
    the capacity and the will to search out principle, to discard the
    detail appropriate (perhaps) to earlier times, and to apply principle
    in such a way as to satisfy the needs of their own time. If
    judge-made law is to survive as a living and relevant body of law,
    we must make the effort, however inadequately, to follow the lead
    of the great masters of the judicial art,

    In this appeal, therefore, there is much in the earlier case
    law which the House must discard - almost everything I would say
    but its principle. For example, the horrendous Agar-Ellis decisions
    10 Ch.D. 49; 24 Ch.D. 317 of the late 19th century asserting the
    power of the father over his child were rightly remaindered to the
    history books by the Court of Appeal in Hewer v. Bryant [1970] 1
    Q.B. 357, an important case to which I shall return later. Yet the
    decisions of earlier generations may well afford clues to the true
    principle of the law: e.g. Reg, v. Howes (1860) 3 E. & E. 332,
    336, which I also later quote. It is the duty of this House to look
    at, through, and past the decisions of earlier generations so that it
    may identify the principle which lies behind them. Even Lord
    Eldon, (no legal revolutionary), once remarked, when invited to
    study precedent, (the strength of which he never under-rated):

    "All law ought to stand upon principle; and unless decision
    has removed out of the way all argument and all principle,
    so as to make it impossible to apply them to the case
    before you, you must find out what is the principle upon
    which it must be decided." 1 Bligh 486 quoted by Lord
    Campbell, Lives of the Lord Chancellors, 4th ed. (1857), vol.
    10, chap. 213, p. 244.

    -22 -

    Approaching the earlier law in this way, one finds plenty of
    indications as to the principles governing the law's approach to
    parental right and the child's right to make his or her own
    decision. Parental rights clearly do exist, and they do not wholly
    disappear until the age of majority. Parental rights relate to both
    the person and the property of the child - custody, care, and
    control of the person and guardianship of the property of the
    child. But the common law has never treated such rights as
    sovereign or beyond review and control. Nor has our law ever
    treated the child as other than a person with capacities and rights
    recognised by law. The principle of the law, as I shall endeavour
    to show, is that parental rights are derived from parental duty and
    exist only so long as they are needed for the protection of the
    person and property of the child. The principle has been subjected
    to certain age limits set by statute for certain purposes: and in
    some cases the courts have declared an age of discretion at which
    a child acquires before the age of majority the right to make his
    (or her) own decision. But these limitations in no way undermine
    the principle of the law, and should not be allowed to obscure it.

    Let me make good, quite shortly, the proposition of
    principle.

    First, the guardianship legislation. Section 5 of the
    Guardianship of Infants Act 1886 began the process which is now
    complete of establishing the equal rights of mother and father. In
    doing so the legislation, which is currently embodied in section 1
    of the Guardianship of Minors Act 1971, took over from the
    Chancery courts a rule which they had long followed (it was
    certainly applied by Lord Eldon, during his quarter of a century as
    Lord Chancellor, as Parker L.3. in this case, quoting Heilbron 3. at
    [1985] 2 W.L.R. 413, 424, reminds us) that when a court has
    before it a question as to the care and upbringing of a child it
    must treat the welfare of the child as the paramount consideration
    in determining the order to be made. There is here a principle
    which limits and governs the exercise of parental rights of
    custody, care, and control. It is a principle perfectly consistent
    with the law's recognition of the parent as the natural guardian of
    the child; but it is also a warning that parental right must be
    exercised in accordance with the welfare principle and can be
    challenged, even overridden, if it be not.

    Secondly, there is the common law's understanding of the
    nature of parental right. We are not concerned in this appeal to
    catalogue all that is contained in what Sachs L.J. has felicitously
    described as the "bundle of rights" (Hewer v. Bryant, [1970] Q.B.
    357, 373) which together constitute the rights of custody, care,
    and control. It is abundantly plain that the law recognises that
    there is a right and a duty of parents to determine whether or not
    to seek medical advice in respect of their child, and, having
    received advice, to give or withhold consent to medical treatment.
    The question in the appeal is as to the extent, and duration of the
    right and the circumstances in which outside the two admitted
    exceptions to which I have earlier referred it can be overridden by
    the exercise of medical judgment.

    As Parker and Fox L.JJ. noted in the Court of Appeal, the
    modern statute law recognises the existence of parental right:
    e.g. sections 85 and 86 Children Act 1975 and sections 2. 3, and 4

    - 23 -

    Child Care Act 1980. It is derived from parental duty. A most
    illuminating discussion of parental right is to be found in
    Blackstone's Commentaries, 17th ed. (1830), vol. 1 chapters 16 and
    17. He analyses the duty of the parent as the "maintenance . . .
    protection, and . . . education" of the child: p. 446. He declares
    that the power of parents over their children is derived from their
    duty and exists "to enable the parent more effectually to perform
    his duty, and partly as a recompense for his care and trouble in
    the faithful discharge of it:" op.cit. p. 452. In chapter 17 he
    discusses the relation of guardian and ward. It is, he points out, a
    relation "derived out of [the relation of parent and child]: the
    guardian being only a temporary parent, that is, for so long a time
    as the ward is an infant, or under age": op.cit. chap. 17, p. 460.
    A little later in the same chapter he again emphasises that the
    power and reciprocal duty of a guardian and ward are the same,
    pro tempore, as that of a father and child and adds that the
    guardian, when the ward comes of age, (as also the father who
    becomes guardian "at common law" if an estate be left to his
    child) must account to the child for all that he has transacted on
    his behalf: pp. 462-463. He then embarks upon a discussion of the
    different ages at which for different purposes a child comes of
    sufficient age to make his own decision; and he cites examples,
    viz. a boy might at 12 years old take the oath of allegiance; at
    14 he might consent to marriage or choose his guardian "and, if
    his discretion be actually proved, may make his testament of his
    personal estate;" at 17 he could be an executor - all these rights
    and responsibilities being capable of his acquiring before reaching
    the age of majority at 21: op.cit. p. 463.

    The two chapters provide a valuable insight into the
    principle and flexibility of the common law. The principle is that
    parental right or power of control of the person and property of
    his child exists primarily to enable the parent to discharge his
    duty of maintenance, protection, and education until he reaches
    such an age as to be able to look after himself and make his own
    decisions. Blackstone does suggest that there was a further
    justification for parental right, viz. as a recompense for the
    faithful discharge of parental duty: but the right of the father to
    the exclusion of the mother and the reward element as one of the
    reasons for the existence of the right have been swept away by
    the Guardianship of Minors legislation to which I have already
    referred. He also accepts that by statute and by case law varying
    ages of discretion have been fixed for various purposes. But it is
    clear that this was done to achieve certainty where it was
    considered necessary and in no way limits the principle that
    parental right endures only so long as it is needed for the
    protection of the child.

    Although statute has intervened in respect of a child's
    capacity to consent to medical treatment from the age of 16
    onwards, neither statute nor the case law has ruled on the extent
    and duration of parental right in respect of children under the age
    of 16. More specifically, there is no rule yet applied to
    contraceptive treatment, which has special problems of its own and
    is a late-comer in medical practice. It is open, therefore, to the
    House to formulate a rule. The Court of Appeal favoured a fixed
    age limit of 16, basing themselves on a view of the statute law
    which I do not share and upon their view of the effect of the
    older case law which for the reasons already given I cannot

    - 24-

    accept. They sought to justify the limit by the public interest in
    the law being certain. Certainty is always an advantage in the
    law, and in some branches of the law it is a necessity. But it
    brings with it an inflexibility and a rigidity which in some
    branches of the law can obstruct justice, impede the law's
    development, and stamp upon the law the mark of obsolescence
    where what is needed is the capacity for development. The law
    relating to parent and child is concerned with the problems of the
    growth and maturity of the human personality. If the law should
    impose upon the process of "growing up" fixed limits where nature
    knows only a continuous process, the price would be artificiality
    and a lack of realism in an area where the law must be sensitive
    to human development and social change. If certainty be thought
    desirable, it is better that the rigid demarcations necessary to
    achieve it should be laid down by legislation after a full
    consideration of all the relevant factors than by the courts
    confined as they are by the forensic process to the evidence
    adduced by the parties and to whatever may properly fall within
    the judicial notice of judges. Unless and until Parliament should
    think fit to intervene, the courts should establish a principle
    flexible enough to enable justice to be achieved by its application
    to the particular circumstances proved by the evidence placed
    before them.

    The underlying principle of the law was exposed by
    Blackstone and can be seen to have been acknowledged in the case
    law. It 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 Denning M.R. captured the spirit
    and principle of the law when he said in Hewer v. Bryant [1970] 1
    Q.B. 357, 369:

    "I would get rid of the rule in In re Agar-Ellis, 24 Ch.D.
    317 and of the suggested exceptions to it. That case was
    decided in the year 1883. It reflects the attitude of a
    Victorian parent towards his children. He expected
    unquestioning obedience to his commands. If a son
    disobeyed, his father would cut him off with a shilling. If a
    daughter had an illegitimate child, he would turn her out of
    the house. His power only ceased when the child became
    21. I decline to accept a view so much out of date. The
    common law can, and should, keep pace with the times. It
    should declare, in conformity with the recent Report of the
    Committee on the Age of Majority [Cmnd. 3342, 1967], that
    the legal right of a parent to the custody of a child ends at
    the 18th birthday: and even up till then, it is a dwindling
    right which the courts will hesitate to enforce against the
    wishes of the child, and the more so the older he is. It
    starts with a right of control and ends with little more than
    advice."

    But his is by no means a solitary voice. It is consistent
    with the opinion expressed by the House in J. v. C. [1970] A.C.
    668 where their Lordships clearly recognised as out of place the
    assertion in the Agar-Ellis cases 10 Ch.D. 49; 24 Ch.D. 317 of a
    father's power bordering on "patria potestas." It is consistent with
    the view of Lord Parker C.J. in Reg, v. Howard [1966] 1 W.L.R.
    13, 14 where he ruled that in the case of a prosecution charging

    - 25 -

    rape of a girl under 16 the Crown must prove either lack of her
    consent or that she was not in a position to decide whether to
    consent or resist and added the comment that "there are many
    girls who know full well what it is all about and can properly
    consent." And it is consistent with the views of the House in the
    recent criminal case where a father was accused of kidnapping his
    own child, Reg, v. D. [1984] A.C. 778, a case to which I shall
    return.

    For the reasons which I have endeavoured to develop the
    case law of the 19th and earlier centuries is no guide to the
    application of the law in the conditions of today. The Agar-Ellis
    cases 10 Ch.D. 49; 24 Ch.D. 317 (the power of the father) cannot
    live with the modern statute law. The habeas corpus "age of
    discretion" cases are also no guide as to the limits which should
    be accepted today in marking out the bounds of parental right, of
    a child's capacity to make his or her own decision, and of a
    doctor's duty to his patient. Nevertheless the "age of discretion"
    cases are helpful in that they do reveal the judges as accepting
    that a minor can in law achieve an age of discretion before
    coming of full age. The "age of discretion" cases are cases in
    which a parent or guardian (usually the father) has applied for
    habeas corpus to secure the return of his child who has left home
    without his consent. The courts would refuse an order if the child
    had attained the age of discretion, which came to be regarded as
    14 for boys and 16 for girls, and did not wish to return. The
    principle underlying them was plainly that an o