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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7 (17 October 1985) URL: https://www.bailii.org/uk/cases/UKHL/1985/7.html Cite as: [1985] 3 WLR 830, [1985] UKHL 7, [1986] 1 FLR 229, [1986] AC 112, [1985] 3 All ER 402 |
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[HOUSE OF LORDS]
GILLICK RESPONDENT AND WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY FIRST APPELLANTS AND DEPARTMENT OF HEALTH AND SOCIAL SECURITY SECOND APPELLANTS
| 1984 Nov. 19, 20, 21, 22; Dec. 20 1985 June 24, 25, 26, 27; July 1, 2, 3, 4; Oct. 17 | Eveleigh , Fox and Parker L.JJ. Lord Fraser of Tullybelton , Lord Scarman , Lord Bridge of Harwich , Lord Brandon of Oakbrook and Lord Templeman |
Health Service (Family Planning) Act 1967, local health authorities in England and Wales were empowered, with the approval of the Minister of Health and to such extent as he might direct, to make arrangements for the giving of advice on contraception, the medical examination of persons seeking advice on contraception for the purpose of determining what advice to give and the supply of contraceptive substances and contraceptive appliances. This was, so far as is known, the first occasion upon which Parliament had made any provision for what may be described simply as contraceptive advice and treatment. The Act of 1967 was repealed by the National Health Service Reorganisation Act 1973, which Act, by section 4, replaced the power of local health authorities to provide for such advice and treatment with a duty upon the Secretary of State to do so. Section 4 has now been replaced in like terms by section 5(1) ( b) of the National Health Service Act 1977 which provides that it is the Secretary of State's duty: health authority nor the subsequent duty of the Secretary of State to provide for contraceptive advice and treatment was subject to any limitation upon the age of the persons to whom such service was to be accorded. Health and Social Security, who are the second respondents in this appeal, issued an explanatory circular concerning such arrangements to which was attached a Memorandum of Guidance, section G of which was entitled “The Young.” The relevant parts of it are set out in full in the report of the judgment of Woolf J. presently under appeal, at [1984] Q.B. 581, 588, 589. In view of that and the fact that section G was amended in 1980 it is unnecessary to do more here than mention that it states: (1) that in the light of the fact that there were 1,490 births and 2,804 induced abortions among girls under 16 there was a clear need for contraceptive services to be available for and accessible to young people at risk of pregnancy irrespective of age. (2) That it was for the doctor to decide whether to provide contraceptive advice and treatment. (3) That the Medical Defence Union had advised that the parents of a child, of whatever age, should not be contacted by any staff without his or her permission.acceptance, if not encouragement, of the idea that contraceptive advice and treatment could be given to girls, not merely under 16 but well under 16, without the consent or even the knowledge of parents, not unnaturally provoked much concern and in December 1980 the department issued a notice containing section G, the terms of which are directly challenged in the appeal and which I therefore quote in full: 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 disease, 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.acceptance of the position that the young can be advised and treated without the knowledge or consent of their parents, but that position is plainly still accepted. Gillick, the appellant, a Roman Catholic who then had four, but now has five, daughters under the age of 16, wrote on 21 January 1981 to the local health authority in the following terms: Health on this important matter. You will see that the Minister emphasises that it would be most unusual to provide advice about contraception without parental consent, but it does go on to say that the final decision must be for the doctor's clinical judgment. We would expect our doctors to work within these guidelines but, as the Minister has stated, the final decision in these matters must be one of clinical judgment.”Gillick and further correspondence ensued until on 3 March 1981 Mrs. Gillick wrote a final letter making her position clear: Norfolk A.H.A. to give any contraception or abortion advice or treatment whatsoever to my four daughters, while they are under 16 years, without my consent. Will you please acknowledge this letter and agree wholeheartedly to advise your doctors etc. to abide by my forbidding.”Gillick commenced proceedings against both the area health authority and the department. By her specially indorsed writ she claimed two declarations, the first against the area health authority and the department and the second against the area health authority only. The declarations sought are: 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 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 first defendants that no doctor or other professional person employed by the first defendants either in the Family Planning Service or otherwise may given 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/or consent of the said child's parent or guardian.”Gillick's action was dismissed by Woolf J. and she now appeals to this court. It must be stated at the outset that Mrs. Gillick's purpose in bringing the action is to establish the extent of parental rights and duties in respect of girls under 16, for there is not the slightest suggestion that any of her daughters is likely, when under 16, to need contraceptive or abortion advice or treatment much less to seek it and accept it without her knowledge and consent. Indeed only her three eldest daughters can realistically be regarded as being at risk of pregnancy and capable of seeking and accepting contraceptive advice or treatment even if they did form a sudden desire to indulge in sexual activity and yielded to it. These three were aged respectively 13, 12 and 10 at the date of the writ. The fourth daughter was then aged 5 and the fifth not yet born.act. She has therefore in my opinion ample interest to justify her attempt to establish the extent of her rights and duties and to do so by way of action for a declaration rather than by way of judicial review. Neither of the defendants indeed contended to the contrary and Mr. Laws for the department conceded that if Mrs. Gillick could establish the right which she asserted it must follow that the department's notice was contrary to law and must be struck down on one or other of the heads recognized in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223.views as to whether and, if so, in what circumstances, doctors should on medical, social, moral, religious or ethical grounds, either (i) fail to inform a parent that a child under 16 had sought contraceptive advice; or (ii) provide contraceptive advice or treatment without the parents' knowledge and consent.Accordingly this court does not seek to determine, and indeed has no material on which it could determine whether, for example, it is “better” on some such ground (1) that mothers of young children should be kept in ignorance of what their children are doing lest young girls be deterred from seeking contraceptive advice and treatment with, so it is said, increased risks of pregnancy, more unwanted babies, more back street abortions and so on, or (2) that mothers should always be informed and their consent obtained despite the alleged disadvantages mentioned above and possible family friction, because otherwise the stability of families will be threatened, the parents' ability to carry out their rights and obligations will be impaired, etc. Whether Mrs. Gillick is right or wrong in her contentions, such matters will have to be determined in another forum, and the law, if necessary, altered by Parliament. Such matters are not for this court.acting against a clearly defined public policy.The extent of a parent's rights and duties with respect to the medical treatment of a child
Act 1969, by section 1 of which the age of majority was reduced from 21 to 18, there was no statutory provision with regard to a minor's consent to surgical, medical or dental treatment, but section 8 of that Act provided: 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. (2) In this section ‘surgical, medical or dental treatment’ includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment. (3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.”valid prior to the Act could still be relied on.Act, the consent of a minor under the age of 16 would have been effective and there are many indications that it would not, as I shall in due course show.Health Service (General Medical and Pharmaceutical Services) Regulations 1962 (S.I. 1962 No. 2248) gave to a person who had attained the age of 16 the right to choose his own doctor by providing that until such age the right should be exercised on his behalf by a parent, guardian or other person who had the care of the child; and the Mental Health Act 1959, section 5(2) (which deals with the informal admission of patients requiring treatment for a men disorder) provides: vested by law in his parent or guardian.”vested in a parent or guardian carried with it the right to prevent a minor submitting to treatment for mental disorder or admitting himself to a hospital or nursing home therefore and qualifies that right in respect, but only in respect, of minors who have attained the age of 16 years and are capable of expressing their own wishes. This as it seems to me is but one aspect of what is inherent in the right to custody or control. In this connection certain provisions of the Children Act 1975 are of some assistance. Section 85 provides: Act, unless the context otherwise requires, ‘the parental rights and duties’ means as respects a particular child (whether legitimate or not), all the rights and duties which by law the mother and father have in relation to a legitimate child and his property; and references to a parental right or duty shall be construed accordingly and shall include a right of access and any other element included in a right or duty. (2) Subject to section 1(2) of the Guardianship Act 1973 (which relates to separation agreements between husband and wife), a person cannot surrender or transfer to another any parental right or duty he has as respects a child.”actual custody: 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); but a person shall not by virtue of having legal custody of a child be entitled to effect or arrange for his emigration from the United Kingdom unless he is a parent or guardian of the child.actual custodian for so long as the child is in his actual custody has, it is recognised, all the parental rights and duties relating to the person of the child including specifically the place at which and manner in which his time is spent. For the purposes of the Act a child is, in effect, a minor: see section 107.accept him or her as a patient. At this stage, however, unless the child is going to his or her own general practitioner, which in the present context is unlikely, the doctor will know nothing about the child. If he decides to accept the child as a patient then, it is said, there is an inviolable duty of confidence and the parent cannot be informed or his or her consent sought without the child's permission. The doctor is entitled to decide what advice or treatment to administer.Act 1944. Subsection (3) places a duty upon every local education authority to make arrangements for seeing that comprehensive facilities for free medical treatment should be available to pupils in attendance at every school or county college maintained by it and empowers it to make such arrangements for senior pupils at any other educational establishment maintained by it. Subsection (4) places upon every local education authority the further duty to make arrangements for encouraging and assisting pupils to take advantage of such facilities but contains the following proviso: 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.”Gillick's contentions.very young, to seek to have her sterilised when she reached about 18. She reached puberty at the age of 10 and her mother, who had over the years discussed the possibility of sterilisation with a consultant paediatrician, a Dr. Gordon, raised the matter with him again. He and the mother agreed that the sterilisation operation should be performed provided that a Miss Duncan, a consultant gynaecologist, also agreed. Miss Duncan did agree and D. was accordingly booked into a hospital in order that a hysterectomy might be performed. The former and present headmasters of D.'s school, a social worker involved with the family and the plaintiff, Mrs. Hamidi, and an educational psychologist who had seen D. on a number of occasions, disagreed with what was proposed. An attempt was made by them to secure a change of views but this failed. The plaintiff therefore instituted wardship proceedings and sought the ruling of the court as to what should be done. The matter was heard by Heilbron J. in chambers but a full judgment was given in open court. There were two issues: (1) whether the wardship should be continued and (2) whether the proposed sterilisation should take place. Heilbron J. decided that wardship should continue and that the operation should not take place. As to the first issue the judge said, at pp. 193–194: vividly expressed it in Wellesley's case, 2 Russ. 1, 18: ‘… it has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.’ I think this is the very type of case where this court should ‘throw some care around this child,’ and I propose to continue her wardship which, in my judgment, is appropriate in this case.”vital matter, I want to make it quite clear that I have well in mind the natural feelings of a parent's heart, and though in wardship proceedings parents' rights can be superseded the court will not do so lightly and only in pursuance of well-known principles laid down over the years. The exercise of the court's jurisdiction is paternal, and it must be exercised judicially, and the judge must act, as far as humanly possible, on the evidence, as a wise parent would act.” (The emphasis is mine).view, that a decision to carry out an operation of this nature performed for non-therapeutic purposes on a minor can be held to be within the doctor's sole clinical judgment.”act as a wise parent would act it is submitted that, if there is no wardship, parental consent must be sought in order that he or she should have the opportunity to act wisely. Such contention appears to me to have considerable force.authority. They and P. were in favour of an abortion but her parents, whose consent the local authority had, albeit not obliged to do so, properly sought, objected strongly on religious grounds When they objected, the local authority instituted wardship proceedings. The parents' wishes were overridden but since the child was in care this is not of particular significance. What is of some importance, however, is that Butler-Sloss J. not only ordered that an abortion should take place against the parents' wishes, but ordered further that, with the approval and at the request of the mother, she be fitted thereafter with a suitable internal contraceptive device. As to this the judge 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.”v. C. [1970] AC 668. That case, however, affords little assistance as to what rights and obligations (or duties) are comprised in parental rights and obligations, for the question was whether section 1 of the Guardianship of Infants Act 1925 (which makes the welfare of the infant the first and paramount consideration in proceedings in which custody or upbringing is in question) applies only to disputes between parents or whether it also applies to disputes between parents and strangers. In so far as parental rights and obligations figured at all it was therefore in relation to the weight to be given to them in reaching a conclusion under the Act as to what was best for the child and not In relation to their extent. The defendants' reliance on this case is in my opinion misplaced. In re N. (Minors) (Parental Rights) [1974] Fam. 40 was also relied on but that case also affords no real assistance.v. Howes (1860) 3 E. & E. 332 the question was whether a father was, by habeas corpus, entitled to recover the custody of a child between 15 and 16 notwithstanding that the child did not desire to be in his custody. Cockburn C.J., giving the judgment of the court on the father's application for the return of the child to his custody, said, at pp. 336–337: 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 the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him.”v. Howes, 3 E. & E. 332 set out above, said, at p. 331: Act, I should have thought was beyond dispute, that during infancy and over 16 the right of the father still continues.”Act referred to was the Tenures Abolition Act 1660 (12 Car. 2c.24), section 8 of which gave the father the right to dispose of the custody and tuition of his children up to the age of 21.authority. As far as one can see, some little confusion has been caused by the use in earlier law books of distinctions by which the law now no longer strictly stands. The strict common law gave to the father the guardianship of his children during the age of nurture and until the age of discretion. The limit was fixed at 14 years in the case of a boy, and 16 years in the case of a girl; but beyond this, except in the case of the heir apparent, if one is to take the strict terminology of the older law the father had no actual guardianship except only in the case of the heir apparent, in which case he was guardian by nature till 21. That was what was called guardianship by nature in strict law. But for a great number of years the term ‘guardian by nature’ has not been confined, so far as the father is concerned, to the case of heirs apparent, but has been used on the contrary to denote that sort of guardianship which the ordinary law of nature entrusts to the father till the age of infancy has completely passed and gone.authority which a father has over his child up to the complete age of 21, will be found in Hargreave's note to Coke (Co. Lit. 88b.). There is, therefore, a natural paternal jurisdiction between the age of discretion and the age of 21, which the law will recognise. It has not only been recognised by the common law and by the Court of Chancery but it has also been recognised by statute. The [Tenures Abolition] Act of 12 Car. 2 enables the father by his will to dispose of the custody and tuition of his child or children until they attain the age of 21 years. It seems to me to follow that if a father can dispose of the custody and tuition of his children by will until the age of 21, it must be because the law recognises, to some extent, that he has himself an authority over the children till that age is reached. To neglect the natural jurisdiction of the father over the child until the age of 21 would be really to set aside the whole course and order of nature and it seems to me it would disturb the very foundation of family life.”v. Bryant [1970] 1 Q.B. 357, a case in which the matter for decision was the meaning of the words “in the custody of a parent” in section 22(2) ( b) of the Limitation Act 1939 as amended by the Law Reform (Limitation of Actions, etc.) Act 1954. In that section the court construed the words as covering a case where, as a matter of fact, the minor was in the effective care and control of the parent. There was, however, considerable discussion of the more general aspect of parental rights which is presently of assistance. The trenchant criticism appears in the judgment of Lord Denning M.R. where he said, at p. 369: 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.”veto the issue of a passport and to withhold consent to marriage. They include, also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the courts to exercise the powers of the Crown as parens patriae. It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, namely, such personal power of physical control as a parent or guardian may have.”view concerning In re Agar-Ellis, 24 Ch D. 317, Lord Denning M.R. was clearly of the view that the legal right to custody continues, and should continue, up to but not beyond the child's eighteenth birthday (which it does) albeit that the right was a dwindling one. This it clearly is, if only because a boy of 14 or a girl of 16 can give an adequate consent to being out of its father's custody or in that of another so as to defeat any claim of the father by habeas corpus to have it back. Furthermore, albeit there may remain until 18 a legal right of control, it may, as the child grows older, be necessary for the parents, because physical control is no longer practical, to seek the assistance of the court to buttress and support the legal right. As to Sachs L.J.'s observation it does not appear to me to matter whether one refers to the parent or guardian having a bundle of powers or a bundle of rights. What is important is the recognition of the wide area in which, subject always to intervention by the court, a parent or guardian is entitled (by the exercise of a power or right) to control a child.v. D. [1984] A.C. 778 where the House of Lords had, in a criminal matter, to consider two certified questions, namely: (a) whether the common law offence of kidnapping exists in the case of a child victim under the age of 14 years; and (b) whether, in any circumstances, a parent may be convicted of such an offence where the child victim is unmarried and under the age of majority.v. Edge [1943] I.R. 115, a case in which the history of the parental right to custody is the subject of exhaustive discussion. With regard to the decision itself he said, [1984] A.C. 778, 803: view, nothing in Edge's case, to show that the Irish Supreme Court were of the opinion that there did not exist any common law offence of kidnapping a child under 14. On the contrary, it is implicit in their decision that they considered that such an offence did exist, but that, in order to establish it, the taking or carrying away of such a child would have to be shown to have been without the consent of the child's parent or other lawful guardian, rather than without the consent of the child himself. It will be necessary to consider later whether this distinction, between a child over 14 and one under 14, accords with the English law of kidnapping.”accept that doctrine as applicable under English law would not be consistent with the formulation of the third ingredient of the common law offence of kidnapping which I made earlier on the basis of the wide body of authority to which your Lordships were referred. That third ingredient, as I formulated it earlier, consists of the absence of consent on the part of the person taken or carried away. I see no good reason why, in relation to the kidnapping of a child, it should not in all cases be the absence of the child's consent which is material, whatever its age may be. 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. “I should add that, while the absence of the consent of the person having custody or care and control of a child is not material to what I have stated to be the third ingredient of the common law offence of kidnapping, the giving of consent by such a person may be very relevant to the fourth such ingredient, in that, depending on all the circumstances, it might well support a defence of lawful excuse.”valid consent may clearly be of significance and requires examination.vary as between individual girls and boys. It is apparent that Lord Brandon regarded the age as being below 14 and, since the child concerned was there aged five, more than five, but this leaves a nine-year gap which at some time will need to be resolved.very different considerations apply there, it still seems to be the case that consent of the child is no answer to habeas corpus unless the child has attained the age of either 14 or 16 as the case may be.authorities to point to any lower age.victim is old enough for consent to be legally possible there can be no objection to an investigation at the trial and a finding of fact by the jury on the two questions mentioned. Indeed such findings would be essential before a person were convicted.accept that the position is as the House of Lords have held it to be for the purposes of a charge of kidnapping. I am not so driven.vital part of the defendants' case that, save with the child's permission, the parent shall not be told but that the matter must be left to the clinical judgment of the doctor, who may for example have been told “if Dad knew he'd beat me up.”view misplaced. I can see nothing particularly clinical in a decision to fit an intra-uterine device in a Roman Catholic girl aged 13 on the ground that she wishes to start having sexual intercourse with a boyfriend and because attempts with a sheath have been a disastrous failure, even if the girl or boy or both assert that they will otherwise proceed without any contraceptive measures. The doctor in such circumstances cannot help taking into account his views on the moral, social, religious, etc. aspects.Gillick seeks and had won the battle, might thereafter wish that she had never fought it, for it might lead to pregnancy, a back street abortion and even death. Such matters are, however, matters for debate elsewhere. If it be the law that until a girl is 16 no one may, save by the intervention of the court, afford advice or treatment without the parent's consent, then that law must be observed until it is altered by the legislature. The common law must, it is true, move with the times or keep up to date whenever it legitimately can but if, as the law presently stands, the relevant age is 16, then it cannot in my opinion legitimately change that position. Even if the case went to the House of Lords and all the judges were unanimous, the decision would be one of nine men only without the materials on which to act. accident and unconscious, assure the doctor that she has not had that injection and is not taking any drugs. This may have serious and possibly fatal consequences. I give this particular example because it is, I hope and believe, free from the strong feelings aroused by the particular advice and treatment here under consideration.view that at least up to the age of discretion either a child itself or anyone dealing with the child can lawfully interfere with the parents' rights flowing from custody.The criminal aspects
Act 1956, of aiding and abetting an offence under section 6 of that Act. accordance with the notes of guidance. However, the provisions already referred to and other provisions of the Act remain of importance, as providing a clear indication of public policy. Furthermore, some assistance is to be found in this connection from other sections and from both earlier and later statutory history.Act 1861 (24 & 25 Vict.c. 100) created the offences of having unlawful carnal knowledge respectively of a girl under the age of 10 years and a girl between the ages of 10 and 12 years. The former offence was a felony carrying a minimum sentence of three years' penal servitude and a maximum of penal servitude for life or a maximum of two years' imprisonment with or without hard labour. The latter offence was a misdemeanour carrying a sentence of three years' penal servitude or imprisonment with or without hard labour for a term not exceeding two years.Act 1875 (38 & 39 Vict.c. 94) the foregoing sections were repealed and re-enacted with amendments (1) substituting the ages of 12 and 13 for the ages of 10 and 12, (2) raising the minimum term of penal servitude for the graver offence from three to five years, (3) removing the possible sentence of penal servitude in the case of the lesser offence and (4) expressly stating in the case of the lesser offence that it was committed “whether with or without her consent.” This last specific provision was presumably because by raising the age, there were being brought within the criminal law cases in which hitherto consent would have prevented any offence existing at all.Act 1885 (48 & 49 Vict.c. 69) repealed the Act of 1875 and by sections 4 and 5 re-enacted the earlier provision with amendments (1) raising the respective ages to 13 and 16, (2) making attempts to commit either of the offences, offences in themselves and (3) providing in the case of the lesser offence the defence that the person charged had reasonable cause to believe that the girl was of or above the age of 16 years.Act of 1885 remained in force until it was repealed by the Sexual Offences Act 1956, the relevant sections being replaced by sections 5 and 6 of the new Act. Under the new sections the graver offence remained a felony carrying a maximum sentence of imprisonment for life and the lesser offence remained a misdemeanour carrying a maximum sentence of two years' imprisonment. The respective ages remained unchanged. Attempts were, in both cases, preserved as separate offences in themselves, carrying maximum sentences of two years' imprisonment in both cases. As before, there were no special defences in respect of the graver offence, but in the case of the lesser offence there were two special defences provided by sections 6(2) and (3) which provided: Act, 1949, or section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of 16), the invalidity does not make the husband guilty of an offence under this section because he has sexual intercourse with her, if he believes her to be his wife and has reasonable cause for the belief. (3) A man is not guilty of an offence under this section because he has unlawful sexual intercourse with a girl under the age of 16, if he is under the age of 24 and has not previously been charged with a like offence, and he believes her to be of the age of 16 or over and has reasonable cause for the belief. In this subsection, ‘a like offence’ means an offence under this section or an attempt to commit one, or an offence under paragraph (1) of section 5 of the Criminal Law Amendment Act, 1885 (the provision replaced for England and Wales by this section).”Act 1960 the maximum penalty for an attempt to commit the graver offence was increased from two years to seven years. Secondly, in 1967, as a result of the abolition of the distinction between felony and misdemeanour, certain procedural changes were made. An incidental result of this was that concealment of the graver crime, which previously would itself have constituted a crime, namely misprision of felony, ceased to be a crime.accorded to the under 13's by raising the maximum penalty for an offence of attempt from two years to seven years. It will also be seen that in the case of the lesser offence the defence provided by the Act of 1885 was severely limited by the Act of 1956.authority and would have been guilty of a common law offence if he failed to do so. Whether this applied also in the case of contemplated felonies had not been decided when the offence ceased to exist. In Sykes v. Director of Public Prosecutions [1962] A.C. 528, Lord Denning suggested that there might be exceptions to the general rule, including amongst such possible exceptions a doctor and his patient. He recognised, however, that parent and child was not an exception.Act of 1956 which have some bearing are (1) section 14, which provides that it is an offence (subject to a special exception) to commit an indecent assault on a woman and also, by subsection (2), that a girl under 16 “cannot in law give any consent which would prevent an act being an assault for the purposes of this section.” (2) Section 19 which, subject to an exception, makes it an offence to take an unmarried girl under the age of 18 out of the possession of her parent or guardian against his will. (3) Section 20, which creates the like offence, but without the exception in the case of a girl under 16; and (4) sections 25 and 26 which provide, in the case respectively of girls under 13 and those between 13 and 16, that it is an offence for the owner of premises and certain others to permit the girl to resort to or be on the premises for the purpose of having unlawful sexual intercourse with men or a particular man. The former offence was originally a felony subject to a maximum sentence of life imprisonment. It still is so subject. The latter offence was and is subject to a maximum sentence of two years.vaginal examination, and some contraceptive devices involve in their fitting that which would, without consent, prima facie be indecent assaults. It may be that a doctor, who without the consent of a woman examines her vagina for medical purposes, commits no indecent assault, but there are clearly strong arguments the other way. In my view a doctor who, for example, examines a 10-year-old, is at least at risk of prosecution unless he has the consent of a parent and this is so up to the age of 16 when, if the child consents the consent is valid by statute and the offence ceases. Moreover, it has always been the law that for a plain civil trespass to a child a parent had his own right to sue in certain circumstances.valid consent. The position with regard to girls under 16 is in like case for both crime and habeas corpus, but between 16 and 18, although habeas corpus will not avail if the child consents, her consent is irrelevant to the crime. However, between 18 and 21, which was the then age of majority, the parent was unprotected either by habeas corpus or by the criminal law. This does not, however, mean that the right to custody ceased at 18, merely that from then on, albeit the child was under age, her consent was valid for criminal and habeas corpus purposes.action which would go some way to lessen the inhibitions of a girl under 16 and a man against sexual intercourse by protecting them from any ensuing undesirable consequences.Act of 1885 under which a mother was convicted for allowing her 14-year-old illegitimate daughter to have intercourse with a man in their joint home: see Reg. v. Webster (1885) 16 Q.B.D. 134. A mother or father, therefore, clearly has a duty to prevent the act of intercourse where by virtue of ownership of premises she or he can control the situation.view which I have already expressed. It is true that prior to 1885 the consent of a girl under 16 would prevent intercourse with her being a crime, but since then girls under 16 have been consistently treated as being unable to give consent.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 will 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.view irrelevant. The question is simply whether a doctor is entitled to do so or whether in doing so he would infringe the parents' legal rights.area in which for present purposes it is relevant.view as follows. (1) It is clearly established that a parent or guardian has, as such, a parcel of rights in relation to children in his custody. (2) By statute, subject to an exception, such rights can be neither abandoned nor transferred. (3) Such rights include the right to control the manner in which and the place at which the child spends his or her time. (4) Those rights will be enforced by the courts subject to the right of the court to override the parental rights in the interests of the child. (5) There is no authority of any kind to suggest that anyone other than the court can interfere with the parents' rights otherwise than by resort to the courts, or pursuant to specific statutory powers or exceptions. (6) It is clearly recognised that there is some age below which a child is incapable as a matter of law of giving any valid consent or making any valid decision for itself in regard to its custody or upbringing. (7) The authorities indicate that this age is 16 in the case of girls and 14 in the case of boys at all events for the purposes of habeas corpus. (8) So far as girls are concerned, the provisions of the criminal law show that Parliament has taken the view that the consent of a girl under 16 in the matter of sexual intercourse is a nullity.valid consent to anything in the areas under consideration which apart from consent would constitute an assault, whether civil or criminal, and can impose no valid prohibition on a doctor against seeking parental consent.view whether 16 should or should not be the age below which a girl can give no valid consent and make no valid decision in the two fields under consideration. I express only the view that in law it is presently such age.health authority would withdraw the latter whether or not a declaration were granted. Nevertheless, by reason of the far reaching nature of this problem, it is in my view desirable that there should be a formal declaration by this court, and I would propose that it be declared: Gillick wrote to the area health authority demanding an assurance that in no circumstances would any of her daughters be given contraceptive or abortion treatment while they were under 16 in any of the Family Planning Clinics under the control of the authority without her (Mrs. Gillick's) consent. That assurance was not forthcoming. These proceedings are the consequence. They require an investigation of the rights, if any, of parents to be informed of and to control medical treatment to their children. I say “parents” because although Mrs. Gillick is the sole plaintiff, she and her husband are of the same mind in relation to the case, and no point arises as to his absence. Nor, I may say, is any point taken upon the fact that the proceedings take the form which they do and are not by way of judicial review.Health and Social Security questions the propriety of the use of the word “rights” at all in relation to the position of parents in these matters. He says that if parents can be said to have any rights in relation to their child, it is only a right to carry out the duties which the parents owe to the child. Parents, he says, have no “free-standing” rights at all. For that he relies upon the decision of the House of Lords in J. v. C. [1970] AC 668. The statutory background to that decision was section 1 of the Guardianship of Infants Act 1925 which is as follows: Act, 1886) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant 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.”Act of 1925 did anything more than re-state the existing Chancery doctrine in wardship cases I need not consider, but one would have thought that the language of the section was clear enough and that in any proceedings of the kind mentioned in the section, whether between parents or between a parent and a stranger, the welfare of the child is the first and paramount consideration. However, in In re Carroll (An Infant) [1931] 1 K.B. 317, a dispute arose about an illegitimate child between her mother and an adoption society to whom she had, in the past, handed over the child and who, in that time, had handed the child over to persons who wished to adopt her. The mother now wished to recover the child and place her in an institution of a particular religious denomination. The child was made a ward. The High Court and the Divisional Court both decided that it was in the best interests of the child to leave her where she was. The Court of Appeal, however, by a majority reversed those decisions. Scrutton L.J. said at p. 337 that there had been no material change in the law in the preceding 40 years save that the mother's wishes had been put on an equality with the father; that there was no case in which the court had disregarded the view of an only parent; and that the wishes of the mother as the sole parent should prevail. Slesser L.J. was of the opinion that section 1 of the Act of 1925 was irrelevant. He said, at pp. 355–356: view, has confined itself to questions as between the rights of father and mother which I have already outlined — problems which cannot arise in the case of an illegitimate child, and … it is difficult to see … how it can be said from a consideration of that statute that there has been a development of thought between 1891 and 1926.”v. C. [1970] AC 668 the essence of the matter was the submission of the parents that united parents were prima facie entitled to the custody of their infant child and that the court would only deprive them of care and control if they were unfitted by character, conduct or otherwise to have care and control. And it was asserted that section 1 of the Act of 1925 only applied to disputes between parents and not to disputes between parents and strangers (which was the position in J. v. C.). The House of Lords held that section 1 applied to all disputes, whether between parents themselves or between parents and strangers that the section required that in any such dispute the welfare of the child was the paramount consideration; that In re Carroll was wrong in so far as it decided to the contrary; and that since the judge had not misdirected himself in fact or law there was no ground for interfering with his decision that the welfare of the child in that case required that the child should be committed to the care of the foster parents and not to the parents. I do not think that the case is of assistance. No doubt if a child is a ward of court and a question arises whether it should or should not receive particular medical treatment, the court will determine that question as it thinks best for the welfare of the child even though that determination conflicts with the honestly held views of responsible parents. But that does not really assist in deciding whether, when there is no wardship, the parents have any rights in relation to the giving of medical advice and treatment to their children. Most children are not the subject of litigation and, simply as a matter of convenience and ordered living, some rules have to be established for regulating their affairs even though the court, in the last resort, can in the exercise of its wardship or other jurisdiction impose its own view upon the particular facts of the individual case, as to what is best for the welfare of the child. A statutory example of that is marriage. A child who is over 16 but under 18 cannot, generally, marry without the consent of both parents: see Marriage Act 1949, section 3 and Schedule 2, as amended by the Family Law Reform Act 1969, section 2. The court can however override the refusal of the parents to consent: Marriage Act 1949, section 3(1) (b).v. C. and the welfare principle to which it gives effect should be regarded as necessarily inconsistent with prima facie working rules which can be applied without prejudice to the ultimate authority of the court. The welfare principle as formulated in the statutes assumes the existence of a dispute before the court and, therefore, that there is an arbiter (the court) which can finally determine in the individual case what is best for the welfare of the child, even though reasonable persons may hold strongly differing views as to what is best. I appreciate that general rules may, in an individual case, work unsatisfactorily. There is, however, in the background, the ultimate control of the court if recourse is had to that.accepted that parents do have “rights” in relation to their children. Thus, the Children Act 1975, section 85(1), provides that unless a contrary intention appears “the parental rights and duties” means as respects a particular child (whether legitimate or not) “all the rights and duties” which by law the mother and father have in relation to a legitimate child and his property. Further, except under the provisions of certain separation agreements between husband and wife, a person cannot surrender or transfer any parental right or duty which he has as respects a child (section 85(2)).Act 1975 provides that in the Act unless the contrary appears, “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) …”v. De Manneville (1804) 5 East 221 the father, upon a habeas corpus, obtained custody of his eight-month-old child from its mother. Lord Ellenborough C.J. said, at p. 223: “Then [the father] having a legal right to the custody of his child, and not having abused that right, is entitled to have it restored to him.” This doctrine was mitigated to some extent by two factors. First, the principle that habeas corpus would not go to compel a child who had attained the “age of discretion” to return to the father against the child's wishes. The age of discretion was 16 for girls and 14 for boys: see Thomasset v. Thomasset [1894] P 295, 298, per Lindley L.J. The age of 16 seems to have derived from the Abduction Act 1557 (4 & 5 Ph. & M.c. 8) which related to the abduction of girls: see Reg. v. Howes, 3 E. & E. 332, 334 and 337. The second mitigating factor was the development in Chancery of the principle of the welfare of the child. The fusion of law and equity, with the rules of equity prevailing, which was enacted in 1875 by the Supreme Court of Judicature Act (38 & 39 Vict.c. 77) does not, however, seem to have diminished the inclination of the courts to enforce the wishes of the father. The Agar-Ellis cases (1878) 10 Ch D 49 and (1883) 24 Ch D 317 are extreme examples of this attitude. In the 1883 case, Cotton L.J. said, 24 Ch D. 317. 334: very extreme cases, interfere with the discretion of the father, but leave to him the responsibility of exercising that power which nature has given him by the birth of the child.”V.-C. said, 10 Ch D. 49, 56: Act 1886 (49 & 50 Vict.c. 27) which provided that the court might access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents …” See per Scrutton L.J. in In re Carroll (An Infant) [1931] 1 K.B. 317, 335.v. Bryant [1970] 1 Q.B. 357, 369 said that we should “get rid of the rule in In re Agar-Ellis.” The principle of the virtual supremacy of the parent's wishes stated by Cotton L.J. and Sir Richard Malins V.-C. in the passages which I have cited represent, I agree, far too extreme a notion of the parent's rights and is unacceptable; it is indeed inconsistent with the provisions of section 1 of the Guardianship of Infants Act 1925 and its successor, the Act of 1971. I do not, however, think that the common law right to custody has been abrogated. We have not been referred to any statute or authority which does that. The right has been subjected to the control of the court and, in effect, no longer belongs to the father alone — it belongs to both parents. But subject to any order of the court in relation to the individual child, it seems to me that the parents have custody. And further the custody continues during minority: see the observations of Bowen L.J. in In re Agar-Ellis 24 Ch D. 317, 335–336. Lord Denning M.R. in Hewer v. Bryant [1970] 1 Q.B. 357, despite his criticism of In re Agar-Ellis, did not doubt that legal custody should continue to 18 though as the child gets older it may, in practice, be a waning right unless the court is prepared to support it for the child's welfare.Act 1975 includes, among the rights therein comprised, the rights relating to “the place and manner in which [the child's] time is spent.” These matters depend upon control of the child's person and indeed the section refers to the child's person. If the parents are effectively to determine the place and manner in which the child's time is spent, it seems to me that the law must give them complete control of the child's person. Against that background, we have to consider first of all whether it is permissible, as the department asserts, for a doctor to give contraceptive treatment to a girl under 16 without informing the child's parents. I do not think it is. To provide contraceptive treatment to a girl of such an age must, it seems to me, be regarded as a matter of major importance in the child's life. And to do so without informing the parents is, I think, a serious interference with parental responsibility and the rights involved in custody. It seems to me to be an interference with the control of matters relative to the child and its person which the law (subject to the ultimate discretion of the court in individual cases) gives to the parents. It was accepted by Mr. Laws that if a doctor was aware that a child was a ward of court it would not be proper for him to provide contraceptive treatment without the authority of the court. I think that concession was rightly made. The court's jurisdiction is, however, essentially parental, and it does not set out to do more than a wise and caring parent would: see Reg. v. Gyngall [1893] 2 QB 232, 241 per Lord Esher M.R. Exercising such jurisdiction it would certainly expect that no major decision regarding a girl under 16 should be made without reference to the court. And I think that most parents would certainly expect, in the case of a girl under 16, that they would be informed also. Such expectations in my view are fully supported by the legal rights of parents. Further, if the decision can be made by the doctor without informing the parents, the consequence may be to remove from the parents the right to obtain the courts' ruling upon whether it is for the child's welfare or not. The decision will have been taken and the treatment given. The parents may not learn of it until long afterwards. The position in relation to a girl under 16 is rendered even less acceptable by the fact that the contraceptive treatment is to enable the girl to embark upon or continue sexual relations which, for the man, will normally constitute a criminal offence under section 6 of the Sexual Offences Act 1956 (i.e., unlawful sexual intercourse with a girl under 16).Act 1969 provide: 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. (3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.”Gillick that subsection (1) enables a consent to be given by a minor which otherwise could not be given; and that subsection (3) merely removes any doubt that the parents' consent could still be effective. The department, however, contend that a minor of sufficient understanding can give consent, and that subsection (1) merely provides an irrebuttable presumption of sufficient understanding in the case of a person over 16. Subsection (3), it is said, merely allows proof of sufficient understanding in the individual case below 16.vary considerably according to the nature of the matter to be decided. The authorities in the civil law show no tendency to encourage such a rule. Thus in relation to the age of discretion Cockburn C.J. in Reg. v. Howes, 3 E. & E. 332, 336–337 said: v. Gyngall [1893] 2 QB 232, 250 Kay L.J. said: varying capacities of understanding in individual children. I can see nothing in the authorities which supports, much less establishes, that, at common law, a decision (not in emergency) regarding the provision of medical treatment to a girl under 16 could have been taken without the consent of the father. As I have indicated, the paternal rights at law were very wide, and I see no indication that decisions on major matters regarding the welfare of a girl under 16 could have depended on her consent. The only relevant statutory intervention is that contained in section 8 of the Family Law Reform Act 1969 which relates only to persons over 16.view, is that a girl under 16 cannot give a valid consent to contraceptive treatment and is not entitled to prohibit a doctor from seeking the consent of her parents.authority can, if it thinks fit, seek to have the matter determined by the court.value of the part which an experienced doctor can play in the practical resolution of the problems with which we are concerned. Nor should one underrate the value of the parents' part. They know the child and they know its history. In most cases, whatever the civil law may be, the best outcome is likely to be that which is the consequence of full co-operation between the parents and the doctor in deciding what is in the child's interest.Act 1971, with the welfare of particular children, namely the daughters of Mrs. Gillick now under the age of 16, we are dealing with children of a united family and with parents who are concerned for their well-being. That such children, while under 16, should be given contraceptive treatment without the knowledge of their parents seems to me, on the balance of probability, to be likely to be disruptive of family relationships and inimical to the children's welfare. Nor am I satisfied, on any facts before us, that it would be for their welfare that they should be given such treatment after notice to the parents but against the parents' wishes. The parents in this family are likely to know the child very well. Accepting that they may have strong views on these matters which may not be shared by others, I am not persuaded that, in relation to children of so young an age, their views should necessarily be overridden by those of the doctor (I am not referring to emergencies). It seems to me that if the parents' wishes are to be overridden, that should be done by the court in relation to the particular circumstances of the time.Gillick is entitled to the relief which she seeks. I should add that while the writ refers to abortion as well as contraceptive treatment the argument before us was directed to the latter. It is not, however, suggested that there is any difference in principle between the two for the present purposes.view one way or the other on that. As regards any comparison with the criminal law as regards capacity to consent, the criminal law is concerned with different problems (including, in particular, the liberty of the subject) and different considerations apply. Accordingly I do not think that one can safely determine the civil law except on the basis of the civil law authorities, more particularly in view of the use made in the common law of the age of discretion.accordingly. authorities to which Parker and Fox L.JJ. have referred, the authority to make such decisions rests with the person having custody of the child. Mrs. Gillick is such a person and I shall use the word “parent” to cover all persons who have custody. It follows that the parent's decision must prevail unless displaced by the child's welfare. Where a court awards custody to a person, it does so upon the basis that that person is capable of making the right decision and, in consequence of the order, that person is the proper person to make the decision. A natural parent must be in the same position in the absence of a court order to the contrary. In some areas the parent's freedom to decide is circumscribed by statute, for example in education. Where this is not so, the parent's decision must be treated prima facie as being in the child's best interests. Anyone who interferes with the parent's decision must be prepared to demonstrate that the decision is not in the child's best interests. In the present case the area health authority have taken the attitude that whatever the parent's wishes or decision any child, and Mrs. Gillick's three children in particular, must be free to obtain contraceptive treatment.Gillick contends that in relation to abortion or contraception she should be consulted. She wishes to have a say. She also wishes to ensure that as between herself and the doctors employed by the area health authority that she shall have the deciding voice. Gillick's children are not to be free to consult a doctor in confidence and to receive treatment in confidence. However, she clearly recognises that any decision of hers must be subject to review by the court.Gillick's decision in this regard cannot be supported if in relation to each child the child's welfare demands that it should be otherwise. There are two ways of showing this. One, upon the general proposition that, irrespective of the particular child, such a parental decision must be wrong. Two, that in relation to each of these children considered separately there are personal considerations to make the decision wrong.views upon the overall question of the desirability of providing contraceptive aids, and therefore it is impossible, as a generalisation, to say that aids should be available no matter what the personal circumstances of the child. Those who say that aids should be freely available do so on the grounds of public policy, as they see it, that the risk of illegitimate children should be avoided. Some say that those who put the opposite view do so because of out-dated inborn prejudice which fails to accord the welfare of the child the first and paramount consideration. I shall therefore briefly list some points in the argument in order to see if the choice between them points inexorably in one direction.area health authority is permitted to let it be known that it is proper for a child to obtain secret medical advice irrespective of the parent's wishes, the authority of the parent is undermined and the stability of family life threatened.accepted that the provision of a contraceptive device is preceded by a careful medical examination. The doctor concerned will have no knowledge of the child's medical history. The decision to provide a device ought not simply to be regarded as a clinical one for it involves the character of the child and her whole wellbeing. This is not a matter to be decided by one who does not know the child.authority should not be undermined.area health authority. It is inevitable because the authority's case is simplicity itself, namely that public policy dictates its conduct. The opponents retort that public policy demands the stability of family life.Gillick is not acting in the best interests of the child. On the other hand, I cannot say that a parent who does not seek to be involved will always be wrong. The question cannot be answered by a generalisation. I must therefore consider each of Mrs. Gillick's children individually.Gillick is wrong in her decision. Indeed on the evidence before us I must assume that she knows best and I think that she is right. I therefore would grant the second declaration with the minor amendment suggested by Parker L.J.authorises the doctor employed by the area health authority to defy the wishes of a parent like Mrs. Gillick. As I find that Mrs. Gillick is entitled to the second declaration, I hope that I am not being too simplistic when I say that it must follow that to the extent that it authorises such a course, the notice is unlawful. However, the declaration claimed is in somewhat wide and loose terms. I do not think that we should do more than grant the declaration which Parker L.J. has drafted.accurate to say that a parent has no rights. The rights may vary in their nature. Some may be only rights of imperfect obligation, but it is too sweeping a statement to say that a parent has no rights, as the judgments just delivered show.according to law. The relevant authorities have been referred to, and in my judgment they lead to the orders which we propose to make. I do not seek to express my own views upon the wider questions which the subject of birth control provokes. I would also emphasise that I do not intend to lay down a rule that in every case, no matter what the question is, no matter who the child is, the parent must be consulted before any important decision can ever be arrived at in relation to the child. A person who may be involved in such a situation will have three courses open to him. He may do nothing, he may consult the parent, he may make the decision himself and act independently if constrained to do so. Each case must depend upon its own facts, and consequently I cannot say that there will never be a case where it is permissible to act in spite of the parents' wishes. Such cases, however, will be extremely rare and almost impossible to conceive when the parents are thoroughly responsible people.accepting a child as a patient in the first place.Gillick's case were to succeed only on the basis that such treatment would be a breach of the criminal law. We are concerned with the welfare of children from all aspects.Appeal allowed with costs, and declarations granted accordingly.
Leave to appeal.
Solicitors: Ollard & Bentley, March; Treasury Solicitor.
[Reported by PAUL MAGRATH, ESQ., Barrister-at-Law.]
APPEAL from the Court of Appeal.
This was an appeal by the Department of Health and Social Security from a decision dated 20 December 1985 of the Court of Appeal, ante, p. 118A, (Eveleigh, Fox and Parker L.JJ.) allowing an appeal by the plaintiff, Victoria Gillick, from a judgment of Woolf J. [1984] Q.B. 581 who on 26 July 1983 dismissed the plaintiff's action against the defendants, the Norfolk Area Health Authority (subsequently amended to the West Norfolk and Wisbech Area Health Authority), and the Department of Health and Social Security, claiming (i) a declaration against both defendants that on its true construction Health Notice (H.N. (80) 46), had no authority in law and gave advice which was unlawful and wrong, and which adversely affected or might adversely affect the welfare of the plaintiff's children, and/or the rights of the plaintiff as parent and custodian of the children, and/or the ability of the plaintiff properly and effectively to discharge her duties as such parent and custodian; and (ii) a declaration against the area health authority that no doctor or other professional person employed by them either in the Family Planning Service or otherwise might 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 child's parent or guardian. The Court of Appeal granted the defendants leave to appeal.
The facts are stated in the opinion of Lord Fraser of Tullybelton.
John Laws and Ian Kennedy for the Department of Health and Social Security. This case must be decided on judicial review principles, namely whether the Secretary of State was acting ultra vires any statutory provision. It is said by the plaintiff that in issuing the memorandum of guidance the Secretary of State misunderstood some principle of law material to the guidance, or that the guidance enshrines an erroneous view of the law which is material to the subject matter. Those propositions are put in three ways: (1) that the guidance involves a denial of a legal right which parents possess in relation to their children; (2) that the guidance, if carried into effect by doctors, would sometimes involve the commission by doctors of the criminal offence of aiding and abetting unlawful sexual intercourse; and (3) that the guidance involves the commission of criminal offences and torts by doctors and other professional people, namely assault on the child, because the child cannot in law consent to the touching involved in medical examination which would be necessary in following the guidance.
On the question of parental rights, it is essential to analyse the legal right contended for. The contention is that every parent is in English law entitled to be informed whenever a doctor or other professional person proposes to give any contraceptive advice or treatment to his or her daughter aged under 16 years, in order that the parent might seek to dissuade or prevent the doctor from so acting. That right is said to admit of no exceptions save in the case of an “emergency” and is said to be an absolute right. If that right exists, it is a right which is incapable of being policed by the court and also, paradoxically, of being enforced, because it could not be looked at by the court except in the context of being denied.
The guidance deals only with unusual or exceptional cases and contemplates parents not being informed only in the “most unusual” or “exceptional” cases. If the plaintiff accepted that, she would not object to the guidance. But the plaintiff's contention is that even in exceptional and unusual cases parents have a right to know and a doctor cannot act without the parent's knowledge. That being the position, this case is not primarily about the family circumstances of the plaintiff herself: see Parker L.J., ante, p. 121A–C. On a proper analysis the exercise of the right to know cannot be modified, qualified or prohibited on the grounds that it would be contrary to the interests of the child.
The question whether it would be wise to inform the parents cannot be tested in court without the parents being informed. Any value in keeping the matter from the parents in an individual case would be lost even if the doctor felt that disclosure to the parents would be harmful to the child. To invoke the assistance of the courts would be to throw the baby out with the bath water.
The parental right to be informed does not apparently carry with it any means of its being enforced by the person entitled to the right. If the doctor does not inform the parents, clearly the parents could not get relief in advance because they would not have the knowledge with which to sue. After the event neither the parent nor the child would have a claim for damages. Therefore it is a right which is not enforceable in law and raises the question whether in fact there is such a right in law. It also denies to the doctor any measure of discretion in relation to a child under 16 years.
The Children Act 1975 made sweeping changes to the way in which courts dealt with children. Parker L.J. was incorrect in his analysis of that Act, ante, pp. 123G — 124H, and in particular it cannot be accepted that the Act gave parents the right to determine “the place at which and manner in which [the child's] time is spent.” There is a dwindling scale of parental rights from birth to the age of majority. The Act of 1975 suggests that parents' rights march with parents' duties.
In regard to the Education Act 1944, Parker L.J., ante, pp. 124H — 125C, was incorrect. Section 48(4) of the Act of 1944 does not have the effect stated by Parker L.J., ante p. 125C. Not only does section 48(4) manifestly not prohibit treatment to a child whose parent objects, but it also has an analogy to the guidance which is objected to in this appeal.
Parker L.J. was also incorrect in construing section 5(2) of the Mental Health Act 1959 which is now re-enacted in section 131(2) of the Mental Health Act 1983: see ante, p. 123E–G. Parker L.J. at p. 123D–E relied on the National Health Service (General Medical and Pharmaceutical Services) Regulations 1962 (S.I. 1962 No. 2248) which are now replaced by the Regulations of 1974 of the same name (S.I. 1974 No. 160). Those Regulations do not lend support to the contention that at common law a child under 16 years is deemed to be incapable of applying for the services of a doctor.
From section 5(1) ( b) of the National Health Service Act 1972 it is clear that contraception is now a medical matter and is no longer a social and moral issue only.
Section 1 of the Guardianship of Minors Act 1971 which enshrines the welfare principle makes the proposition that whenever a parental right is being asserted in proceedings in which a minor's right or custody is in question, that right will be denied if the minor's welfare so requires. It is clear that that principle is not confined to litigation between parents. The principle is illuminating on whether a right of the kind asserted by the plaintiff can be upheld. It cannot be a right which the court will never enforce. Therefore any asserted parental right only has existence so far as it has consonance with the child's welfare and one can never have a case where a parent can assert a right which is contrary to the child's welfare.
Parker L.J. departs, ante, p. 130E–F, from the effect of section 1 of the Act of 1971 when he says that the court will assist “to buttress and support the legal right” of the parent. That is what a court will not do, and a parent cannot insist on the enforcement of a right which is contrary to the welfare of the child. Parker L.J. explicitly recognises, ante p. 133C–F, that the enforcement of the right contended for by the plaintiff might lead in individual cases to tragic consequences.
There might be cases where parental rights should not be enforced because of real family breakdown and where there is danger to the child's physical and mental health. The law does not recognise a parental right which is inconsistent with the child's welfare.
The Abduction Act 1557 (4 & 5 Ph. & M.c.8) is an Act which was passed for the protection of the property of heiresses. It is apparent from the preamble to the Act that it was dealing with the position of heiresses who were sought to be taken in marriage by persons who were after their fortunes. That was made a criminal offence and a penalty was imposed. In Reg. v. Howes (1860) 3 E. & E. 332 Cockburn C.J. was dealing with the Act of 1557 when he supported the concept of parental rights and specified 16 as the age until which a child could not leave the parent. Parker L.J. relied on this case although it was an abduction case in which the question was whether or not a child could leave the custody of the parent and begin an independent life. The Act of 1557 was repealed and replaced by the Offences against the Person Act 1828 (9 Geo. 4,c.31) which does not so clearly reflect the protection of property as does the Act of 1557.
There are two possibilities in the present case. First that a doctor with a patient under 16 years has no discretion to act without the parent's consent, and second that the doctor can act in exceptional cases. The second of these possibilities is no more than that the medical profession has a duty and a discretion to act in the patient's best interests.
It is not necessary for the department to submit that a girl under 16 has the wisdom of an adult. It has merely to be shown that a girl of that age has the capacity to consent to medical treatment. There is no reason to suppose that every girl under 16 years is incompetent to decide whether to practise contraception. Capacity to consent is a question of fact in every case: see Reg. v. D. [1984] A.C. 778; Reg. v. Howard [1966] 1 W.L.R. 13 and Reg. v. Harling [1938] 1 All E.R. 307. The concern in the end is about how a doctor is to perform his professional duty.
In re Agar-Ellis (1883) 24 Ch D 317 was a case in which the father prevented the mother from freely communicating with the daughter. The mother and the daughter applied to the court for free access, but the court decided that although it regretted the father's decision it still could not interfere with his rights based on the Victorian view of the father and child relationship. It is an archaic view which is quite out of line with 20th-century reasoning and its importance is confined to legal history. However, the Court of Appeal heavily relied on it: see ante, pp. 128B–C, 142G. The Court of Appeal followed an outdated trend of cases.
Hewer v. Bryant [1970] 1 Q.B. 357 shows that a parent's legal right over a child is a dwindling right until a child reaches majority. Parker L.J. has misinterpreted that case, ante, p. 130D–F.
J. v. C. [1970] AC 668 is an important case in the context of parental rights and is high authority for the proposition that the law has not stood still in that field. It shows the contrast between the old view and the present one and asserts that the welfare of the infant is the paramount consideration, not only as between parents but also in disputes with strangers and as between strangers. The judgments of the Court of Appeal do not truly reflect the importance of this case: see ante, pp. 127C–D, 140C–E.
The court's purpose can never be to vindicate a parent's rights. If the court thinks that there is inherent harm to the welfare of the child in giving a doctor the discretion to decide on matters relating to the child, that would be relevant. The question is whether a doctor should have a discretion to act in the best interests of the child without having to resort to the court.
A doctor in assessing the consequences of a 15-year-old girl getting pregnant is assessing a clinical matter. If the doctor's clinical judgment could only be carried into effect if he got a court order, that might involve dangers to the child. It is better to have some. rather than no, discretion in the doctor.
The guidance does nothing to encourage the doctor to transgress any principle of law. It is dealing with professional people who have duties recognised by the law and high ethical standards, acting as experts. The need to have regard to the importance of family life is enshrined in the guidance.
In In re N. (Minors) (Parental Rights) [1974] Fam. 40, 46, Ormrod J. does not mention a right to control children when dealing with parental rights, but this case is of limited assistance only.
Three further questions arise. (1) Does the law relating to the duties and powers of doctors demonstrate a scope or discretion for action by doctors such that the guidance is lawful because it merely describes such discretion? That question may perhaps be determinative of the appeal. (2) What separate considerations arise in relation to the second declaration as compared to the first? (3) What view should be taken of the attempt to invoke the law to strike down the guidance, having regard to the fact that it is apparently advice and not an executive act?
The statutes and cases looked at indicate the existence at some time or another of fathers' rights, but that has gone from our law altogether and there is no longer room for the suggestion that as a matter of law the father has more rights than the mother. The rights of parents give rise to the welfare principle, and no rights can prevail against it. All parents' rights are is the power to act for the welfare of the child. Thus where the question is as between the parent's duty and the doctor's duty, there is no conflict in law between those duties since they are duties to act in the best interests of the child.
The question of custody in abduction cases from the Act of 1557 of Philip and Mary onwards is different from the question of what parents might do while the child is in their custody. Therefore those cases are of no help in resolving the present appeal except that the policy remains that as a general rule children should be in the custody of their parents until they are 16 years.
The wider concept of custody, namely the custody that a parent has until a child reaches the age of majority, and the narrower concept of custody, limiting a parent's overall physical control over a child, was explained by Sachs L.J. in Hewer v. Bryant [1970] 1 Q.B. 357.
The question in this appeal has become whether a doctor faced with a girl under the age of 16 asking for, and in his opinion needing, contraceptive advice and treatment without her parents' consent, is required by law to refuse to give such advice and treatment in every case.
The cases on the age of discretion are of no assistance on the issue of the child's capacity to consent to medical examination which would otherwise be an assault. Therefore it would be necessary to look at the common law for guidance on the capacity to consent. Reg. v. D. [1984] A.C. 778 is authority for the proposition that the capacity to consent is a question of fact in every case depending on the child's age and understanding. The view that every child under 16 is incapable of giving consent to medical treatment flies in the face of Reg. v. D. In the Court of Appeal Eveleigh and Fox L.JJ. did not refer to Reg. v. D. and it is unclear what Parker L.J. is saying about it. The criminal law has found that a child under 16 can be capable of consenting and Fox L.J. was incorrect in his conclusions, ante, p. 145A–E Reg. v. Hayes [1977] 1 W.L.R. 234, a case relating to the capacity of a child to give sworn evidence, shows that the law is flexible as to the age at which a child should give sworn evidence. It is a question of fact depending on the understanding of the child.
On the question whether a doctor in prescribing contraceptives to a girl under 16 years would be committing the crime of aiding and abetting unlawful sexual intercourse, the department adopts the reasoning of Woolf J. in his judgment at first instance in [1984] Q.B. 581, 593–595.
A doctor must decide, in the light of his training and in the light of his knowledge of his patient, what information should be provided to the patient: see Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. That principle applies to the new factors of the present appeal and a doctor must have a discretion to conceal information from a third party, namely the parent, if it is in the interests of his patient. If a doctor has undertaken to give “treatment” that includes contraceptive treatment, and therefore he owes all the duties to his patient that are owed in the giving of treatment.
The guidance starts with the premise that doctors would be true to high professional and ethical standards. It was not intended to police bad doctors but to guide those who were doing their best to perform their duty. Any attempt to lay down a rule for doctors would involve defining “clinical judgment,” which could not be defined save by reference to individual cases. The guidance is dealing with an area in which examples are multifarious, and in attempting to lay down a rule their Lordships' House would not be performing a law making or law developing exercise, but would be categorising medical practice. It would therefore not be a rule of law. The question is how doctors are to carry out their duties, and that is a question which cannot be answered fully by reference to legal rules.
There are constraints recognised by the law on what a doctor might do, given that he must act in the best interests of his patients. None of those constraints amounts to a rule. The criminal law provides specific constraints in specific fields as to what a doctor was not allowed to do. A doctor has a duty to exercise due care and professional skill, and the law will enforce that duty. A doctor must also act in accordance with the ethics of his profession and he is liable to disciplinary proceedings with legal sanctions if he does not, with ultimate appeal to the Privy Council. Patients must have the capacity to consent to any treatment that he proposes, and that capacity must be in the sense defined in Reg. v. D. [1984] A.C. 778. The absence of the capacity to consent would prevent the doctor from acting. There is also the constraint of the exceptional ease. If a doctor ignores family ties as set out in the guidance he would not be acting in accordance with it. A further constraint is the veil of ignorance. A doctor must have enough information to be convinced that he is right.
It is impossible to make rules as to how individually a doctor is to act. However, the existence of the constraints is a powerful factor against the making of rules.
It may be said that there is conflict in the present appeal between the parent and the doctor. But both parent and doctor have duties to a common end, namely the welfare of the child. The parent has a general duty and the doctor a specific one. If the doctor considers that the child should have contraceptives for health reasons, he would be acting within his sphere of competence and would be entitled to prescribe. That would be a rare case but it is a possibility. A doctor's duty is not only to treat people who are ill but also to promote the health of his patients. It could be said therefore that there is no rule of law which absolutely prohibits a doctor from acting to provide contraceptive advice or treatment to any girl under the age of 16 who asks for it and requests that her parents should not be told. A doctor's power to act in such a case is legally constrained by provisions of the criminal law, requirements of the doctor's duty and the requirement of the patient's capacity to consent. In carrying out his duty the doctor will act on the presumption that the patient is the person whose decision as to contraceptive treatment should prevail. That is a rebuttable presumption.
The proposition that responsible parents acting upon their responsibility must always have their wishes prevail is in fact to assert an irrebuttable presumption and is therefore wrong as a matter of application of a legal principle. That is qualified by the proposition that a doctor, if he is to act within the constraints identified, is unlikely to be able to act contrary to the presumption.
If the proposition is that there are some cases in which the doctor has no discretion at all, that must be looked at with care. Such cases are said to be cases where the parents are carrying out their responsibility to the child. How is the doctor to ascertain that a particular case is within the prohibited area? It requires him also to make some sort of value judgment about the parents even if they are parents who on the face of it live as a united family. There could be even within that prohibited area a whole range of cases which have to be looked at. The proposition would make no distinction between a girl who is already having sexual intercourse and another who is not.
Where the court is asked for relief by way of a declaration, if there is no evidence of a present or threatened situation which requires such a declaration, the court should not grant it. In the absence of any special evidence, it is not a right use of the court's power to seek a declaration.
There are two aspects to the reviewability of the guidance. First that it is incapable of being judicially reviewed because it contains advice only and contains no executive decision. Secondly, whether advice only can be reviewed. The subject of every judicial review is a decision which affects some other person: see Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374. It is not possible to identify in the guidance any legal solecism. Therefore unless as an absolute rule a doctor has no discretion to act, the guidance is not unlawful.
It is difficult to find any true point of law in the guidance, and the House of Lords is being asked to legislate for the practice of the medical profession. The guidance itself makes clear that the area within which this case lies involves a whole myriad of possible situations. Therefore there are great dangers in attempting to lay down rules unless it is an absolute rule. The department's guidance is true to the legal position of parents and the legal position of doctors. The reconciliation between a doctor's duty and a parent's duty is that both owe a duty to the child.
Gerard Wright Q.C., David Poole Q.C. and Patrick Field for the plaintiff. Parents have the legal responsibility for the physical and moral care and upbringing of their children. Within the concept of parenthood is included those who are placed in loco parentis by the courts or by virtue of statutory powers. The law supports that responsibility by granting and enforcing a power or right of control which extends to all major decisions concerning the welfare of the child in question. In the case of the parents, the courts and only the courts or someone endowed with statutory powers may limit or intervene in the exercise of the parental power and responsibility. In the case of the person possessing statutory powers, only the courts, unless expressly excluded by statute, may intervene. Where the court is in loco parentis as in wardship, no one may lawfully intervene. The duration of that responsibility and power is (a) in wardship, the full period of wardship which may extend throughout minority and up to majority; (b) in statutory guardianship, the full period granted by the statute in question; and (c) in parenthood, up to what for 125 years the common law has recognised as the age of discretion, namely, in females the age of 16.
“Major decisions” extend to and include a decision as to contraceptive treatment. A doctor has no right or power or discretion to make his own independent decision as to contraceptive treatment whatever the wishes of the female child in question. His duty is to advise and assist the parent, or person in loco parentis, or the court, in carrying out that party's duty to care for the child in question. Should he discover on full and proper inquiry that the child in question is entirely free from parental control and that there is no one in loco parentis, his duty is to recognise the fact that the child is in moral danger and to report the matter to those best qualified to deal with such a situation, namely, the social services. The correspondence with the area health authority indicates an assertion by them of a right in its doctors and other servants and agents to ignore and invade the parental responsibility and control and is therefore unlawful and in breach of the legal right implied in that responsibility. Consequently the plaintiff is entitled to the second declaration. The area health authority based its attitude on its interpretation of the guidelines. The interpretation which has been contended for is that a doctor in his sole clinical judgment may in any case override and supersede the wishes of a parent and may provide contraceptive treatment irrespective of the parents' wishes. If and in so far as that is a correct or possible interpretation of the guidance, the advice it provides is contrary to law.
Before the National Health Service was set up, the doctor had a contract with the parent to treat the child. That was a fulfilment of the parent's duty to care for the child. The doctor had no free standing right and the parent had the right to decide on what treatment the child should have.
A minor will only be bound by a contract for necessaries. The general rule is that all other contracts entered into by a minor are voidable at his instance. There might be a contract for “necessaries” with a doctor. The minor is not bound contractually on the basis that he was legally capable of a consensual contract, but quasi-contractually because he is liable to pay a reasonable price for beneficial services. Contraceptive services are not “necessaries.” A child cannot sue and can only sue through a next friend.
Before the National Health Service medical care was obtained by contract. Section 48A of the Education Act 1944 constituted an erosion of parental power in the general interest of the community. Pupils of educational establishments might have to submit to medical examination. In those circumstances the parent would be required to submit the child for medical examination and penalties would be attached for non-compliance. With the establishment of the National Health Service the provision of general medical services by doctors is no longer contractual and there is no payment for medical advice. The statutory provisions deal only with general medical services and there are no regulations which deal with clinics which are set up by the Area Health Authority. The regulations are therefore not of assistance to the department in this appeal.
The clinics are completely anonymous to protect the woman's privacy. The woman has a right to ask that her general practitioner should not be informed of the fact that she has sought advice from the clinic. Such confidentiality and privacy is entirely appropriate for the adult woman but it is not appropriate for the under-16-year-old.
Parents have certain duties and in order to perform them they must have certain powers which are parents' “rights.” The parents must always decide on questions relating to the child's welfare, but their decision can be challenged in the courts. Therefore a parent is always subject to the court. A duty of the parent is a duty to provide medical services if the child needs them. A parent brings in the doctor to fulfil that duty. If the parent and doctor are in conflict, the doctor does not have the right to make a decision on his own.
The department's guidance places no lower age limit at all on girls who might be treated but is merely talking about girls under the age of 16 years. It envisages that the child has a parent, guardian or person in loco parentis.
There are three categories of girls who would not want their parents informed that they are seeking contraceptive treatment: (1) those who are in open rebellion with their parents; (2) those who are in tacit rebellion against their parents and have not informed them of their decision to have contraceptives; and (3) those who are living away from their parents and are de facto independent. In the case of the third category the doctor would not be interfering with parental rights.
A doctor's duty is to give medical advice and treatment. It is accepted that it is unwise for a girl under the age of 16 years to become pregnant. The decision whether to put a girl on contraceptives is a social and moral one, not a medical decision. A doctor should not be a court of appeal from the parent.
The guidance indicates to doctors that they may properly reach a decision to prescribe contraceptives without telling the parents or getting their consent. That is a decision which is entirely within the parental sphere of responsibility. The guidance is so widely drafted that it goes too far and is not in fact confined to “exceptional cases.” The exceptions are too wide. The examples given of people who might suffer if confidentiality is not maintained are not the individuals seen by the doctor. The risk contemplated is the harm which might be caused to those who ought to come to the clinic and might not. Therefore this is a policy decision which is not related to the patient that the doctor is in fact treating. The individual interests of the child who is before the doctor are sacrificed in the interests of others who might be deterred. The interests of the individual child are sacrificed in the interests of this policy.
All parents have a duty to care for their children. It is a natural duty and every species, including the human species, cares for its young. Parents have a legal duty to care for their children and it is a criminal offence to neglect a child under 16 years. Parents also have a moral duty to care for their children. The duty is to be responsible for the physical and moral upbringing of the child. Those two elements are both important and if either one of them is neglected society may suffer. Therefore the primary duty of the parent is towards the physical and moral welfare of the child. The parent has a right to custody and guardianship of the child which is vital to the performance of the parental duty. At common law a parent has a right to possession of the child.
Although the Act of 1557 of Philip and Mary was rooted in the protection of property, it gave particular protection to the girl herself and it was an offence to “deflower.”
The parental right is not absolute and a parent who fails to perform his duty is subject to the criminal law. Circumstances may be such that a parental decision is questioned, but such questioning should be done through proceedings in the court and not by the independent action of the doctor.
This appeal is not about parents' rights against children's rights. It is about doctors' rights. It is contended on behalf of the department that doctors have a special right to interfere with parents' rights. It is a claim of a right in a doctor to act without parental consent or the consent of the court. The question is whether doctors have a right to act as they think fit.
The consequences of a parent's failure to perform his duty is that the local authority can vest in itself the parent's rights. The local authority has power to walk in where the parental responsibility has failed or is failing. But if there is a chance that parental responsibility can be restored, the local authority has a duty to assist in getting the child back with the parent. That shows the necessity for the continuance of parental rights and duties.
When a local authority passes a resolution vesting the parent's rights in itself, the parent has to be informed and has a right to object and to come to court and oppose the resolution. It cannot be done in secret as the doctors claim the right to do. Therefore under the legislation parental rights are not eroded. Any procedure for interfering with or removing parental rights is carefully controlled by statute and there is the requirement to give notice to the parent and the parent has a right to invoke the court. Over and above the statutory provisions which promote parental duty the court has a supervisory duty as parens patriae. It may be necessary for the parent to seek the assistance of the court not only up to the age of 16 but right up to the age of majority.
In Hewer v. Bryant [1970] 1 Q.B. 357, 369 Lord Denning M.R. while referring to the “dwindling” rights of parents still accepts that there is the need for some control and guidance from the parent over the whole period of minority. Sachs L.J. spelled this out in greater detail. He said that a father had a personal power physically to control an infant until the years of discretion. He accepted totally the common law principle of the age of discretion within which the parent has total control before the rights begin to dwindle.
The doctor's duty in relation to the child is to help the parents to perform their duties. The extent of the parental responsibility is not absolute but is subject to the control of the courts. Subject to that there must be no invasion of the parental duty.
The department's guidance is intended to pre-empt the control of the court. Even when a doctor acts in a genuine emergency without the consent of the parents of a patient aged under 16 years, he must not thereafter conceal from the parents the fact that he has acted. In regard to contraception, it must be accepted that the girl is in a disaster situation and is in moral danger. It is not a situation in which the parents should be excluded.
Even the most primitive systems of law distinguish between majority and minority in order to protect children from their own indiscretions. The question is where the dividing line should be drawn between childhood and adulthood. In European systems calendar age indicates where the line is to be drawn and intellectual capacity is irrelevant. However precocious a child may be, he is still in the eyes of the law an infant or minor until the relevant age of majority.
It is a crime to have unlawful sexual intercourse with a girl under the age of 16 years. A girl under the age of 16 has no capacity to consent, but if she is willing the offence changes from the more serious one of rape to the less serious one of having unlawful sexual intercourse with a girl under the age of 16/13 years. Evidence of the use of force or the overcoming of resistance is not necessary in Scots Law where the girl is a pupil, i.e. below the calendar age of 12: see Reg. v. Sweenie (1858) 8 Cox C.C. 223.
Under the law at present, minority continues up to the age of 18, but 14 has come to be of special significance because that is the age at which a child is deemed to be capable of crime. It is not correct to say that there is no age of discretion and the age of discretion is rooted in the common law. In the specific area of sexual decisions Parliament has intervened through the criminal law to indicate a fixed age below which a girl cannot consent. That was for the protection of young girls and it is in that very area that the department is proposing to interfere. As a matter of public policy, sexual intercourse is the very thing from which the girl is being protected.
The guidance has the effect of taking away from the girl the protection which she most certainly needs and of usurping the parental position. The department in its correspondence with the plaintiff refers to the “final decision” which is not in the guidelines. The plaintiff is a mother with children living at home who is concerned enough to ask that her children should not be treated without her consent. It would have been perfectly possible for the area health authority to give her the assurances sought.
All that is derived from Reg. v. D. [1984] A.C. 778 is that the child's capacity to consent is a factor to be considered but is not the overall deciding factor. The welfare principle will always override. That case is distinguishable from the present appeal because it was about kidnapping which is a serious criminal offence and in those circumstances the court would not be in favour of an arbitrary age of discretion.
The provision of contraceptive treatment to girls under the age of 16 either constitutes criminal conduct in itself or is so closely analogous to it as to be contrary to public policy.
Poole Q. C. following. There will always be a problem of enforceability of the decision in this appeal, irrespective of what that decision might be. It would therefore be necessary for their Lordships' House to spell out the law.
A doctor's duty of confidentiality contained in the Hippocratic oath is a qualified one. The duty of confidentiality also has certain exceptions. A patient can give consent to others being informed. A doctor may discuss the patient's case with close relatives of the patient or with colleagues who might also be concerned with the care of the patient. There might be a statutory duty of notification, as for example, in the case of an infectious disease. There might be the sphere of medical research in which details of the patient's case might be divulged. Where a child is living with the parents, a doctor who communicates with a parent who is responsible for the child would not be in breach of confidence. At common law the doctor would in such a case be free to make disclosure to the parents.
When faced with a child patient, the doctor's duty of confidentiality would be adjusted to take in the child's lack of capacity to consent and the parental responsibility.
Laws in reply. There are certain negative submissions on which this appeal does not turn because they are not disputed by the department. It is not concerned with the argument, which is accepted, that the law recognises the powers and duties of parents over their minor children. It does not dispute that the law forbids the abduction of a child under the age of 16 from the custody of the parent. It accepts that the notion of the parent's right to custody involves control, although control dwindles as the child grows older. It is not disputed that in some circumstances it might be possible for a doctor to commit the criminal offence of aiding and abetting unlawful sexual intercourse, but it cannot be said that every time a doctor prescribes contraceptives for a girl under 16 years he is acting criminally. Nor is this a case about the circumstances in which it would be wise or foolish for a doctor to prescribe contraceptives for a girl under 16.
The statutes do not cast any light on the content of parents' rights although the statutes deal with the law relating to abduction. However those provisions do not provide the answer to the questions in the present appeal which is dealing with an uncharted area. A doctor in prescribing for and advising a child without the parents' knowledge is not abducting it.
The plaintiff did not refer to the case of Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 and in the area of doctors' duties it would be difficult to ignore that case. It shows that in certain cases doctors have the right to withhold information even from the patient himself.
The plaintiff's case depends upon establishing an absolute rule that parents' rights must not be invaded even in exceptional cases and that a doctor acting without the consent of parents would be acting outside the common law. [Reference was made to the General Medical Council's publication “Professional Conduct and Discipline: Fitness to Practise” (April 1985).]
Wright Q.C. invited to reply on the General Medical Council's publication. The book gives communication with relatives as an exception to confidentiality between doctor and patient: see p. 20. One wonders why there is no such exception when the physical and normal welfare of a child is at risk.
The area health authority did not appear and was not represented.
Their Lordships took time for consideration.
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.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.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.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 O'Reilly v. Mackman [1983] 2 AC 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's case 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. 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: 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.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: 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.”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.H.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.”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): area health authority] and the [D.H.S.S.] that 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.”Gillick and dismissed the action. The Court of Appeal (Eveleigh, Fox and Parker L.JJ.), ante, p. 118A, allowed the appeal and granted the declarations. Against that decision the D.H.S.S. now appeals.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.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.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(1) ( b) imposes a duty on the Secretary of State: valid consent to contraceptive advice and treatment including medical examination.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: 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. (2) In this section ‘surgical, medical or dental treatment’ includes … (3) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.”Gillick was that section 8(1) 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 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.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(1) ( 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: 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 contraceptive services. I do not believe that a person aged 15, 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.Health Act 1983 which provides for informal admission of patients to mental hospitals. It provides by subsection (2): vested by law in his parent or guardian.”veto contraceptive advice or treatment being given to the girl.Act 1944 which deals with medical inspection and treatment of pupils at state school. Section 48(3) which imposes on the local education authority 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(1) (a). Section 48(4) of the Education Act 1944 which has not been repealed imposes a duty on the local education authority to arrange for encouraging pupils to take advantage of any medical treatment provided under section 48 but it includes a proviso in the following terms: 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.”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.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 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.J. said: 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.Acts to which he referred, but which do not appear to me to be helpful. One of these is the Abduction Act 1557 (4 & 5 Ph. & M.c.8) for punishing: 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 1828 (9 Geo. 4,c.31). We were referred to section 20 of the Act of 1828, 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.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.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 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 a court order or to abandonment of parents' duties).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 section 1 of the Guardianship of Minors Act 1971 as follows: 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.”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: 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); …”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] A.C. 778. 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, at p. 806: 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.”view expressed by Cockburn C.J. in Reg. v. Howes (1860) 3 E. & E. 332, 336–337 in these words: 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 the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him.”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.authority over his children until they attained majority. A rather remarkable example of such authority being upheld by the court was 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: 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 birtiday: 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.”authority as a dwindling right. In J. v. C. [1970] AC 668 Lord Guest and Lord MacDermott referred to the decision in Agar-Ellis, 24 Ch D. 317 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, ante, p. 141H, 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: access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents …” (Emphasis added).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 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: authority to monitor her sexual activities, and, therefore, contraception appears to be the only alternative.”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 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.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 there is nothing strange about entrusting them with this further responsibility which they alone are in a position to discharge satisfactorily.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 he had acted with the parents' consent would not exculpate him as Woolf J. 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, ante, p. 118A, 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. Parker L.J. expressed his conclusion on this part of the case as follows, ante, p. 137F–G: 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 will 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.”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.The second declaration
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.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.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.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: authorised by a competent court nor expressly authorised by statute: [the parental rights case]valid consent to medical treatment and in the particular context of this case to contraceptive or abortion treatment:” [the age of consent point].Procedure
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 KB 223.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] AC 800.v. Mackman [1983] 2 AC 237, 285D, where Lord Diplock, with whose opinion their other Lordships (Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord Bridge of Harwich and Lord Brightman) agreed, laid down a rule in these terms: view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to 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.” [Emphasis supplied.]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 v. Mackman [1983] 2 AC 237 where it could not be contended that there was any infringement or threat of infringement 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.Gillick's claim as falling under the embargo imposed by O'Reilly's case [1983] 2 AC 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: 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.”Gillick was, in my opinion, fully entitled to proceed by ordinary action, even though she could also have proceeded by way of judicial review.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
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
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.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?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.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.The question in 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.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 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
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: 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.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.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.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): vol. 10, ch. 213, p. 244.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.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.J., ante, pp. 125G — 126C, quoting Heilbron J. in In re D. (A Minor) (Wardship: Sterilisation) [1976] Fam. 185, 193–194, 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.v. Bryant [1970] 1 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.Act 1975 and sections 2, 3, and 4 of the 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, chs. 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”: 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: p. 463.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.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 accept. They sought to justify the limit by the public interest in the law being certain.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.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: 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.”voice. It is consistent with the opinion expressed by the House in J. v. C. [1970] AC 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 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.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 order would be refused if the child had sufficient intelligence and understanding to make up his own mind. A passage from the judgment of Cockburn C.J. in Reg. v. Howes (1860) 3 E. & E. 332, which Parker L.J. quoted in the Court of Appeal, illustrates their reasoning and shows how a fixed age was used as a working rule to establish an age at which the requisite “discretion” could be held to be achieved by the child. Cockburn C.J. said, at pp. 336–337: 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 the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him.”accepted by the courts by analogy from the Abduction Acts (the first being the Act of 1557, 4 & 5 Ph. & M. c.8). While it is unrealistic today to treat a 16th century Act as a safe guide in the matter of a girl's discretion, and while no modern judge would dismiss the intelligence of a teenage girl as “intellectual precocity,” we can agree with Cockburn C.J. as to the principle of the law — the attainment by a child of an age of sufficient discretion to enable him or her to exercise a wise choice in his or her own interests.v. D. [1984] A.C. 778. The House must, in my view, be understood as having in that case accepted that, save where statute otherwise provides, a minor's capacity to make his or her own decision depends upon the minor having sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit. The House was faced with a submission that a father, even if he had taken his child away by force or fraud, could not be guilty of a criminal offence of any kind. Lord Brandon of Oakbrook, with whom their other Lordships agreed, commented that this might well have been the view of the legislature and the courts in the 19th century, but had this to say about parental right and a child's capacity in our time to give or withhold a valid consent, at pp. 804–805: accepted conventions of society, and the courts by which such conventions were buttressed and enforced, regarded a father as having absolute and paramount authority, as against all the world, over any children of his who were still under the age of majority (then 21), except for a married daughter. The nature of this view of a father's rights appears clearly from various reported cases, including, as a typical example, In re Agar-Ellis (1883) 24 Ch D 317. The common law, however, while generally immutable in its principles, unless different principles are laid down by statute, is not immutable in the way in which it adapts, develops and applies those principles in a radically changing world and against the background of radically changed social conventions and conditions.”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.”achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances. Emergency, parental neglect, abandonment of the child, or inability to find the parent are examples of exceptional situations justifying the doctor proceeding to treat the child without parental knowledge and consent: but there will arise, no doubt, other exceptional situations in which it will be reasonable for the doctor to proceed without the parent's consent.health of sexual intercourse at her age, risks which contraception may diminish but cannot eliminate. It follows that a doctor will have to satisfy himself that she is able to appraise these factors before he can safely proceed upon the basis that she has at law capacity to consent to contraceptive treatment. And it further follows that ordinarily the proper course will be for him, as the guidance lays down, first to seek to persuade the girl to bring her parents into consultation, and if she refuses, not to prescribe contraceptive treatment unless he is satisfied that her circumstances are such that he ought to proceed without parental knowledge and consent.v. Wellesley Hospital (1970) 17 D.L.R. (3d) 139, a passage from which he quotes in his judgment. The key passage, at p. 143, bears repetition: acquiesced in by a youth of 20 years would nevertheless constitute an assault would be absurd. If such were the case, sexual intercourse with a girl under 21 years would constitute rape. Until the minimum age of consent to sexual acts was fixed at 14 years by a statute, the courts often held that infants were capable of consenting at a considerably earlier age than 14 years.volume on Medical Negligence (1957), by Lord Nathan, p. 176: ‘It is suggested that the most satisfactory solution of the problem is to rule that an infant who is capable of appreciating fully the nature and consequences of a particular operation or of particular treatment can give an effective consent thereto, and in such cases the consent of the guardian is unnecessary; but that where the infant is without that capacity, any apparent consent by him or her will be a nullity the sole right to consent being vested in the guardian.’”The criminal law case
health but with the intention of facilitating her having unlawful sexual intercourse may well be guilty of a criminal offence. It would depend, as my noble and learned friend, Lord Fraser of Tullybelton, observes, upon the doctor's intention — a conclusion hardly to be wondered at in the field of the criminal law. The department's guidance avoids the trap of declaring that the decision to prescribe the treatment is wholly a matter of the doctor's discretion. He may prescribe only if she has the capacity to consent or if exceptional circumstances exist which justify him in exercising his clinical judgment without parental consent. The adjective “clinical” emphasises that it must be a medical judgment based upon what he honestly believes to be necessary for the physical, mental, and emotional health of his patient. The bona fide exercise by a doctor of his clinical judgment must be a complete negation of the guilty mind which is an essential ingredient of the criminal offence of aiding and abetting the commission of unlawful sexual intercourse.health: for the provision of such treatment is recognised as legitimate by Parliament: section 5 of the National Health Service Act 1977. If it should be prescribed for a girl under 16 the fact that it may eliminate a health risk in the event of the girl having unlawful sexual intercourse is an irrelevance unless the doctor intends to encourage her to have that intercourse. If the prescription is the bone fide exercise of his clinical judgment as to what is best for his patient's health, he has nothing to fear from the criminal law or from any public policy based on the criminality of a man having sexual intercourse with her.view of the law that it will result in uncertainty and leave the law in the hands of the doctors. The uncertainty is the price which has to be paid to keep the law in line with social experience, which is that many girls are fully able to make sensible decisions about many matters before they reach the age of 16. I accept that great responsibilities will lie on the medical profession. It is, however, a learned and highly trained profession regulated by statute and governed by a strict ethical code which is vigorously enforced. Abuse of the power to prescribe contraceptive treatment for girls under the age of 16 would render a doctor liable to severe professional penalty. The truth may well be that the rights of parents and children in this sensitive area are better protected by the professional standards of the medical profession than by “a priori” legal lines of division between capacity and lack of capacity to consent since any such general dividing line is sure to produce in some cases injustice, hardship, and injury to health. area health authority, was based on the same reasoning as the first, it must be held to have been wrongly granted. The Court of Appeal's decision to grant it should be, in my opinion, overruled as erroneous in law.Victoria Gillick, and her local area health authority in which she sought, but failed to obtain, an assurance that in no circumstances would any of her daughters when under 16 be offered contraceptive advice or treatment. Mrs. Gillick now has her declaration against the health authority, from which they do not appeal. I should suppose that in such a family as Mrs. Gillick's the possibility of any of her daughters under 16 seeking to use contraceptives secretly was in any event so remote as to make the issue in the proceedings against the health authority purely academic. But what prompted the correspondence was a “Memorandum of Guidance” (“the memorandum”) on the subject of contraceptive advice and treatment for children under 16 issued to all health authorities by the present appellants, the Department of Health and Social Security (“D.H.S.S.”). The terms of the memorandum are set out in full in the speeches of my noble and learned friends, Lord Fraser of Tullybelton and Lord Scarman. The memorandum has been declared by the Court of Appeal to be contrary to law and it is that declaration that gives rise to the only live issue in this appeal. It is against the ethos expressed in the memorandum that Mrs. Gillick's crusade, as my noble and learned friend, Lord Templeman, aptly calls it, is primarily directed.Gillick invokes in her claim to a declaration against the D.H.S.S. If the claim is well founded, it must surely lie in the field of public rather than private law. Mrs. Gillick has no private right which she is in a position to assert against the D.H.S.S. But the point which troubles me has nothing to do with the purely procedural technicality that the proceedings were commenced by writ rather than by application for judicial review. I agree that no objection has been, nor could now be, raised on that ground. My difficulty is more fundamental. I ask myself what is the nature of the action or decision taken by the D.H.S.S. in the exercise of a power conferred upon it which entitles a court of law to intervene and declare that it has stepped beyond the proper limits of its power. I frame the question in that way because I believe that hitherto, certainly in general terms, the court's supervisory jurisdiction over the conduct of administrative authorities has been confined to ensuring that their actions or decisions were taken within the scope of the power which they purported to exercise or conversely to providing a remedy for an authority's failure to act or to decide in circumstances where some appropriate statutory action or decision was called for.Health and Social Security under section 5(1) ( b) of the National Health Service Act 1977 has a general responsibility for the provision within the National Health Service of what may be described shortly as family planning services. But only in a very loose sense could the issue of the memorandum be considered as part of the discharge of that responsibility. The memorandum itself has no statutory force whatever. It is not and does not purport to be issued in the exercise of any statutory power or in the performance of any statutory function. It is purely advisory in character and practitioners in the National Health Service are, as a matter of law, in no way bound by it.v. Wednesbury Corporation [1948] 1 KB 223) on the ground that it involves an unreasonable exercise of a statutory discretion. Such a review must always begin by examining the nature of the statutory power which the administrative authority whose action is called in question has purported to exercise, and asking, in the light of that examination, what were, and what were not, relevant considerations for the authority to take into account in deciding to exercise that power. It is only against such a specific statutory background that the question whether the authority has acted unreasonably, in the Wednesbury sense, can properly be asked and answered. Here there is no specific statutory background by reference to which the appropriate Wednesbury questions could be formulated.authorities operating in the same field is a familiar feature of modern administration. The innumerable circulars issued over the years by successive departments responsible in the field of town and country planning spring to the mind as presenting a familiar example. The question whether the advice tendered in such non-statutory guidance is good or bad, reasonable or unreasonable, cannot, as a general rule, be subject to any form of judicial review. But the question arises whether there is any exception to that general rule.v. Department of Health and Social Security [1981] AC 800. The background to that case was exceptional, as only becomes fully clear when one reads the judgment of Woolf J. at first instance: [1981] 1 All ER 545. The Royal College of Nursing (“R.C.N.”) and the D.H.S.S. had received conflicting legal advice as to whether or not it was lawful, on the true construction of certain provisions of the Abortion Act 1967, for nurses to perform particular functions in the course of a novel medical procedure for the termination of pregnancy, when acting on the orders and under the general supervision of a registered medical practitioner but not necessarily in his presence. The R.C.N. had issued a memorandum and a later circular to its members to the effect that it was not lawful. The D.H.S.S. had issued a circular advising that it was lawful. The desirability of an authoritative resolution of this dispute on a pure question of law was obvious in the interests both of the nursing profession and of the public. The proceedings took the form of a claim by the R.C.N. against the D.H.S.S. for a suitable declaration and the D.H.S.S. in due course counterclaimed a declaration to the opposite effect. As Woolf J. pointed out, neither side took any point as to the jurisdiction of the court to grant a declaration. Woolf J. himself felt it necessary to raise and examine certain questions as to the locus standi of the R.C.N. to bring the proceedings and as to the propriety of their form. He answered these questions in a favourable sense to enable him to decide the disputed question of law on its merits. No technical question bearing on jurisdiction attracted any mention in the Court of Appeal or in this House. In the litigation the original conflict between the parties was reflected in a conflict of judicial opinion. On a count of judicial heads a majority of five to four favoured the R.C.N. But by a majority of three to two in your Lordships' House the D.H.S.S. carried the day and obtained the declaration they sought.areas of social and ethical controversy in which it has no claim to speak with authority or proferring answers to hypothetical questions of law which do not strictly arise for decision.view that in exceptional and unusual cases it may be proper for a doctor to offer contraceptive advice and treatment to a girl under 16 without the knowledge or consent of her parent, guardian or other person in loco parentis, implies that the law does not prohibit the doctor from so acting. The exceptional and unusual cases contemplated are clearly not confined to cases of children abandoned by their parents and not yet taken into care by a local authority or to cases of “emergency,” whatever meaning one may give to that word in this context. I am content to assume, without deciding, that Mrs. Gillick, in view of her dispute with the health authority, has sufficient locus standi to contest the issue of the lawfulness of the memorandum. To succeed in her action against the D.H.S.S. she must at least establish that, leaving aside cases of abandoned children or emergencies, the law does absolutely prohibit the prescription of contraception for a girl under 16 without parental consent or an order of the court.Gillick challenges the lawfulness of the memorandum depends on the two closely related propositions: (a) that no girl under 16 can have the capacity in law to give a valid consent to submit to contraceptive treatment; (b) that the prescription of such treatment without parental consent is an unlawful invasion of parental rights. Both these propositions are comprehensively examined in the speeches of my noble and learned friends, Lord Fraser of Tullybelton and Lord Scarman. I fully agree with the reasons expressed by both my noble and learned friends for reaching the conclusion that neither proposition is well founded in law.Accordingly I would allow the appeal of the D.H.S.S. to the extent of setting aside the declaration made by the Court of Appeal that the memorandum was contrary to law.activities relating to the sexual conduct of girls who are under the age of 16. The first activity is the giving to such girls by professional persons other than doctors (e.g. social workers) of advice about contraception. The second activity is the physical examination of such girls by doctors with a view to their using one or other form of contraception. The third activity is the prescribing for such girls of contraceptive treatment, especially that form which is commonly called “the pill.”activities which has been raised in the two courts below, and again in your Lordships' House, is whether such activities can be lawfully carried on without the prior knowledge and consent of the parents of any girl of the age concerned.activities to which I have referred can be carried on lawfully in any circumstances whatever. If, on the one hand, the right answer to this first point of law is “no,” then no second point of law arises for decision. If, on the other hand, the answer to the first question is “yes,” then a second point of law arises, namely, whether the three activities referred to can only be lawfully carried on with the prior knowledge and consent of the parents of the girl concerned.Act 1885 (48 & 49 Vict.c.69) and then to go on to the Sexual Offences Act 1956, by which the former Act was repealed and largely replaced.Act of 1885, which contained sections 2 to 12, had the cross-heading “Protection of Women and Girls.” Sections 4 and 5 provided, so far as material: v. Tyrrell [1894] 1 QB 710 it was held by the Court of Crown Cases Reserved that it was not a criminal offence for a girl between the ages of 13 and 16 to aid and abet a man in committing, or to incite him to commit, the misdemeanour of having carnal knowledge of her contrary to section 5 of the Criminal Law Amendment Act 1885 set out above. The ground of this decision was that the Act of 1885 had been passed for the purpose of protecting women and girls against themselves: see the judgment of Lord Coleridge C.J. at p. 712.Act 1956 represents the latest pronouncement of Parliament on these matters. Sections 5 and 6 provide, so far as material: Act of 1956 the distinction between felonies and misdemeanours has been abolished. For the purposes of this case, however, nothing turns on this change of terminology.Acts of 1885 and 1956 to which I have referred is that Parliament has for the past century regarded, and still regards today, sexual intercourse between a man and a girl under 16 as a serious criminal offence so far as the man who has such intercourse is concerned. So far as the girl is concerned, she does not commit any criminal offence, even if she aids, abets or incites the having of such intercourse. The reason for this, as explained earlier, is that the relevant statutory provisions have been enacted by Parliament for the purpose of protecting the girl from herself. The having of such intercourse is however, unlawful, and the circumstance that the man is guilty of a criminal offence, while the girl is not, cannot alter that situation.act, it follows necessarily that for any person to promote, encourage or facilitate the commission of such an act may itself be a criminal offence, and must, in any event, be contrary to public policy. Nor can it make any difference that the person who promotes, encourages or facilitates the commission of such an act is a parent or a doctor or a social worker.activities to which I referred earlier should properly be regarded as, directly or indirectly, promoting, encouraging or facilitating the having, contrary to public policy, of sexual intercourse between a man and a girl under 16. In my opinion there can be only one answer to this question, namely, that to give such a girl advice about contraception, to examine her with a view to her using one or more forms of protection, and finally to prescribe contraceptive treatment for her, necessarily involves promoting, encouraging or facilitating the having of sexual intercourse, contrary to public policy, by that girl with a man.Act of 1956. So far as both are concerned there is the inhibition arising from the risk of an unwanted pregnancy. To give the girl contraceptive treatment, following appropriate advice and examination, is to remove largely the second of these two inhibitions. Such removal must involve promoting, encouraging or facilitating the having of sexual intercourse between the girl and the man.accord or at the suggestion of others, itself indicates that she, and probably also the man with whom she is having, or contemplating having, sexual intercourse, are conscious of the inhibition arising from the risk of an unwanted pregnancy. They are conscious of it and are more likely to indulge their desires if it can be removed. The second reason is that, if all a girl under 16 needs to do in order to obtain contraceptive treatment is to threaten that she will go ahead with, or continue, unlawful sexual intercourse with a man unless she is given such treatment, a situation tantamount to blackmail will arise which no legal system ought to tolerate. The only answer which the law should give to such a threat is, “Wait till you are 16.”Health Service Act 1977 imposes on it a statutory duty to carry out, in relation to girls under 16 as well as to older girls or women, the three activities to which I referred earlier. That provision reads: Act. In these circumstances it seems to me that a court, in interpreting the provision, must do so in a way which conforms with considerations of public policy rather than in a way which conflicts with them. For the reasons which I have given earlier, I am of the opinion that, in the case of girls under 16, the giving of advice about contraception, medical examination with a view to the use of one or other form of contraception, and the prescribing of contraceptive treatment, are all contrary to public policy. It follows that I would interpret the expression “persons” in section 5(1) ( b) above as not including girls under 16. Alternatively, I would say that the expression “all reasonable requirements,” which occurs earlier in the provision, cannot be interpreted as including the requirements of a girl under 16 which, if satisfied, will promote, encourage or facilitate unlawful acts of sexual intercourse between a man and her.authority, should be fitted with a contraceptive appliance because it appeared that it was impossible for the local authority, in whose care she was, to control her sexual conduct. It was contended that this decision was authority for the proposition that, in wardship proceedings at any rate, an order could lawfully be made for the supply and fitting of a contraceptive appliance to a girl under 16.views which I have so far expressed are right in law, those considerations can alter the position.Act of that year was passed, and it has remained open to Parliament throughout the 29 years which have since elapsed, to pass legislation providing for some lower age than 16, if it thought fit to do so. Parliament has not thought fit to do so, and I do not consider that it would be right for your Lordships' House, by holding that girls under 16 can lawfully be provided with contraceptive facilities, to undermine or circumvent the criminal law which Parliament has enacted. The criminal law and the civil law should, as it seems to me, march hand in hand on all issues, including that raised in this case, and to allow inconsistency or contradiction between them would, in my view, serve only to discredit the rule of law as a whole.view which I take of the law, making contraception available to girls under 16 is unlawful, whether their parents know of and consent to it or not.Act 1956 makes it an offence for a man to have unlawful sexual intercourse with a girl under the age of 16. Consent by the girl does not afford a defence to the man or constitute an offence by the girl. Parliament has thus indicated that an unmarried girl under the age of 16 is not sufficiently mature to be allowed to decide for herself that she will take part in sexual intercourse. Such a girl cannot therefore be regarded as sufficiently mature to be allowed to decide for herself that she will practise contraception for the purpose of frequent or regular or casual sexual intercourse. Section 6 of the Sexual Offences Act 1956 does not, however, in my view, prevent parent and doctor from deciding that contraceptive facilities shall be made available to an unmarried girl under the age of 16 whose sexual activities are recognised to be uncontrolled and uncontrollable. Section 6 is designed to protect the girl from sexual intercourse. But if the girl cannot be deterred then contraceptive facilities may be provided, not for the purpose of aiding and abetting an offence under section 6 but for the purpose of avoiding the consequences, principally pregnancy, which the girl may suffer from illegal sexual intercourse where sexual intercourse cannot be prevented. In general, where parent and doctor agree that any form of treatment, including contraceptive treatment, is in the best interests of the girl, there is, in my opinion, no legal bar to that treatment.accept the view of either parent or doctor or modify the views of both of them as to what is in the best interests of the girl. The present appeal is concerned with a conflict which is known to the doctor but is concealed from the parent and from the court. The girl, aware that the parent will forbid contraception, requests the doctor to provide and the doctor agrees to provide contraceptive facilities and to keep the parent in ignorance.varies from control and supervision to guidance and advice depending on the discipline enforced by the parent and the age and temperament of the infant. Parental power must be exercised in the best interests of the infant and the court may intervene in the interests of the infant at the behest of the parent or at the behest of a third party. The court may enforce parental right, control the misuse of parental power or uphold independent views asserted by the infant. The court will be guided by the principle that the welfare of the infant is paramount. But subject to the discretion of the court to differ from the views of the parent, the court will, in my opinion, uphold the right of the parent having custody of the infant to decide on behalf of the infant all matters which the infant is not competent to decide. The prudent parent will pay attention to the wishes of the infant and will normally accept them as the infant approaches adulthood. The parent is not bound by the infant's wishes but an infant approaching adulthood may be able to flout the wishes of the parent with ease.v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 904. Where the patient is an infant, the medical profession accept that a parent having custody and being responsible for the infant is entitled on behalf of the infant to consent to or reject treatment if the parent considers that the best interests of the infant so require. Where doctor and parent disagree, the court can decide and is not slow to act. I accept that if there is no time to obtain a decision from the court, a doctor may safely carry out treatment in an emergency if the doctor believes the treatment to be vital to the survival or health of an infant and notwithstanding the opposition of a parent or the impossibility of alerting the parent before the treatment is carried out. In such a case the doctor must have the courage of his convictions that the treatment is necessary and urgent in the interests of the patient and the court will, if necessary, approve after the event treatment which the court would have authorised in advance, even if the treatment proves to be unsuccessful.accept also that a doctor may lawfully carry out some forms of treatment with the consent of an infant patient and against the opposition of a parent based on religious or any other grounds. The effect of the consent of the infant depends on the nature of the treatment and the age and understanding of the infant. For example, a doctor with the consent of an intelligent boy or girl of 15 could in my opinion safely remove tonsils or a troublesome appendix. But any decision on the part of a girl to practise sex and contraception requires not only knowledge of the facts of life and of the dangers of pregnancy and disease but also an understanding of the emotional and other consequences to her family, her male partner and to herself. I doubt whether a girl under the age of 16 is capable of a balanced judgment to embark on frequent, regular or casual sexual intercourse fortified by the illusion that medical science can protect her in mind and body and ignoring the danger of leaping from childhood to adulthood without the difficult formative transitional experiences of adolescence. There are many things which a girl under 16 needs to practise but sex is not one of them. Parliament could declare this view to be out of date. But in my opinion the statutory provisions discussed in the speech of my noble and learned friend, Lord Fraser of Tullybelton, and the provisions of section 6 of the Sexual Offences Act 1956 indicate that as the law now stands an unmarried girl under 16 is not competent to decide to practise sex and contraception.activities without adequate knowledge or mature consideration and preparation. The D.H.S.S. memorandum instructs a doctor to seek to persuade the girl to involve the parent but concludes that “the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor.”acting without the views of the parent, cannot form a “clinical” or any other reliable judgment that the best interests of the girl require the provision of contraceptive facilities. The doctor at the family planning clinic only knows that which the girl chooses to tell him. The family doctor may know some of the circumstances of some of the families who form his registered patients but his information may be, incomplete or misleading. The doctor who provides contraceptive facilities without the knowledge of the parent deprives the parent of the opportunity to protect the girl from sexual intercourse by persuading and helping her to avoid sexual intercourse or by the exercise of parental power which may prevent sexual intercourse. The parent might be able to bring pressure on a male participant to desist from the commission of the offence of sexual intercourse with a girl under 16. The parent might be able and willing to exercise parental power by removing the family or the girl to a different neighbourhood and environment and away from the danger of sexual intercourse.Gillick, in this appeal is that the secret provision of contraceptive facilities for a girl under 16 will, it is said, encourage participation by the girl in sexual intercourse and this practice offends basic principles of morality and religion which ought not to be sabotaged in stealth by kind permission of the National Health Service. The interests of a girl under 16 require her to be protected against sexual intercourse. Such a girl is not sufficiently mature to be allowed to decide to flout the accepted rules of society. The pornographic press and the lascivious film may falsely pretend that sexual intercourse is a form of entertainment available to females on request and to males on demand but the regular, frequent or casual practice of sexual intercourse by a girl or a boy under the age of 16 cannot be beneficial to anybody and may cause harm to character and personality. Before a girl under 16 is supplied with contraceptive facilities, the parent who knows most about the girl and ought to have the most influence with the girl is entitled to exercise parental rights of control, supervision, guidance and advice in order that the girl may, if possible, avoid sexual intercourse until she is older. Contraception should only be considered if and when the combined efforts of parent and doctor fail to prevent the girl from participating in sexual intercourse and there remains only the possibility of protecting the girl against pregnancy resulting from sexual intercourse.validity. Availability of confidential contraceptive treatment may increase the demand for such treatment. Contraceptive treatment for females usually requires daily discipline in order to be effective and girls under 16 frequently lack that discipline. The total number of pregnancies amongst girls of under 16 may, therefore, be increased and not decreased by the availability of contraceptive treatment. But there is no doubt that an individual girl who is denied the opportunity of confidential contraceptive treatment may invite or succumb to sexual intercourse and thereby become pregnant. Those who favour parental power assert that the availability of confidential contraceptive treatment will increase sexual activity by girls under 16. This argument is also not supported by evidence in the present case, and is not susceptible to proof. But it is clear that contraception removes or gives an illusion of removing the possibility of pregnancy and therefore removes restraint on sexual intercourse. Some girls would come under pressure if contraceptive facilities were known to be available and some girls under 16 are susceptible to male domination.activity by girls under 16. Parliament could ensure that the doctor prevailed over the parent by reducing the age of consent or by expressly authorising a doctor to provide contraceptive facilities for any girl without informing the parent, provided the doctor considered that his actions were for the benefit of the girl. Parliament could, on the other hand, ensure that the parent prevailed over the doctor by forbidding contraceptive treatment for a girl under 16 save by or on the recommendation of the girl's general medical practitioner and with the consent of the parent who has registered the girl as a patient of that general practitioner. Some girls, it is said, might pretend to be over 16 but a doctor in doubt could always require confirmation from the girl's registered medical practitioner.authority has been cited which prevents an infant from seeking medical or any other advice or which forbids a doctor to advise an infant who has not been tendered by the parent as a patient. No authority compels a doctor to disclose to a parent, otherwise than in the course of litigation, any information obtained as a result of a conversation between the doctor and the infant. On the other hand, in my opinion, confidentiality owed to an infant is not breached by disclosure to a parent responsible for that infant if the doctor considers that such disclosure is necessary in the interests of the infant. A doctor who gave a pledge to a girl under 16 that he would not disclose the fact or content of a conversation would no doubt honour that pledge, but the doctor ought to hesitate before committing himself. A doctor who gave an unconditional pledge of confidentiality to a girl under 16 would, for example, be in a difficult position if the girl then disclosed information which made the doctor suspect that she was being introduced to sexual intercourse by a man who was also introducing her to drugs.authorise and accept medical examination and treatment for contraception is a decision which a girl under 16 is not competent to make. In my opinion a doctor may not lawfully provide a girl under 16 with contraceptive facilities without the approval of the parent responsible for the girl save pursuant to a court order, or in the case of emergency or in exceptional cases where the parent has abandoned or forfeited by abuse the right to be consulted. Parental rights cannot be insisted upon by a parent who is not responsible for the custody and upbringing of a infant or where the parent has abandoned or abused parental rights. And a doctor is not obliged to give effect to parental rights in an emergency.actions if the doctor reasonably believes that parental rights have, for the time being at any rate, been abandoned.authorities should be alerted to the possibility that the girl is in need of care and protection. Again, the doctor may be satisfied that the parent is a brute and that the girl has been driven to seek solace outside the family. The doctor might decide that it was necessary to provide contraceptive facilities for the girl without informing the parent but the doctor would be bound to consider the possible consequences if the parent, known to be brutal, discovered the truth.acting under an influence which cannot be counteracted immediately. The doctor would be entitled to provide contraceptive facilities as a temporary measure but would, in my opinion, be bound to inform the parent. A subsequent decision to continue contraceptive treatment would be open to the doctor and the parent acting jointly; in default of agreement between them, the welfare authority or the court could be asked to intervene.Gillick it was urged with some force that the practical effect of the memorandum couched in this opaque language was to enable an inexperienced doctor in a family planning clinic, exuding sympathy and veiled in ignorance of the girl's personality and history, to provide contraceptives as if they were sweets withheld from a deprived child by an unfeeling parent; and that any parent who was concerned with the girl's immortal soul or with moral or religious principles might be said to be “entirely unresponsive” to a proposal that an unmarried girl under the age of 16 should be provided with contraceptives. As the memorandum now stands, a “clinical judgment” by the doctor may amount to no more than a belief that a parent will not consent to contraception and a fear that the girl may practise sex without contraception.views expressed in the memorandum may unlawfully interfere with the rights of a parent and make and act upon a decision which the doctor is in law not entitled to make, then in my opinion, the D.H.S.S. which is responsible for the memorandum is amenable to the remedies of judicial review. It matters not whether the memorandum constitutes an order or guidance or advice or a mere expression of views directed to the medical profession or directed to doctors who are engaged in the National Health Service. The issue is not whether the D.H.S.S. are exercising a statutory discretion in a reasonable way but whether by mistake of law the D.H.S.S., a public authority, purports by the memorandum to authorise or approve an unlawful interference with parental rights. In this respect I gratefully acknowledge and accept the observations of my noble and learned friend, Lord Bridge of Harwich, and his warning against the involvement of the courts in areas of social and ethical controversy or hypothetical questions. Nevertheless the questions raised by this appeal must now be answered and, differing from a majority of your Lordships, I consider that Mrs. Gillick has succeeded in her crusade and is entitled in judicial review proceedings to a declaration that the memorandum is unlawful insofar as it purports to authorise or approve of the provision of contraceptive facilities for an unmarried girl under the age of 16 without the knowledge of a parent who holds custody of the girl and has not abandoned or abused the parental right to decide whether such facilities shall be provided. The danger that other parents or individuals may exploit judicial review proceedings by referring social problems to the courts or by seeking general pronouncements of law based on hypothetical facts can be averted by the exercise of the judicial discretion to refuse leave to prosecute judicial review proceedings. In the present case the proceedings are not in form judicial review proceedings but at this stage the technicality can be ignored because the legal issues raised in these proceedings cannot be allowed to remain unanswered. I would therefore grant the relief I have indicated in substitution for the declarations made by the Court of Appeal and I would order Mrs. Gillick's costs to be paid by the D.H.S.S.view the law is consistent with social policy in forbidding the provision of contraceptive facilities for young girls who are under the care and protection of a parent without the involvement of the parent. But social issues need not finally be determined and are not best determined by lawyers or by doctors.Appeal allowed.
Solicitors: Treasury Solicitor; Ollard & Bentley, March.
S. H.
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