PARKER L.J. By section 1 of the National 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 The Act of 1967 was repealed by the National Health Service Reorganisation Act 1973, which Act, by section 4, replaced the power of local health authorities to provide for such advice and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:
“to arrange, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception, the medical examination of persons seeking advice on contraception, the treatment of such persons and the supply of contraceptive substances and appliances.”
It is to be noted in passing that neither the original power of the local 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.
In pursuance of his duty under section 5(1) ( b), the Secretary of State made arrangements, and in May 1974 the Department of 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  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.
The Memorandum of Guidance with its plain 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:
“Clinic sessions should be available for people of all ages, but it may be helpful to make separate, less formal arrangements for young people. The staff should be experienced in dealing with young people and their problems.
“There is widespread concern about counselling and treatment for children under 16. Special care is needed not to undermine parental responsibility and family stability. The Department would therefore hope that in any case where a doctor or other professional worker is approached by a person under the age of 16 for advice on these matters, the doctor, or other professional, will always seek to persuade the child to involve the parent or guardian (or other person in loco parentis) at the earliest stage of consultation, and will proceed from the assumption that it would be most unusual to provide advice about contraception without parental consent.
“It is, however, widely accepted that consultations between doctors and patients are confidential, and the Department recognises the importance which doctors and patients attach to this principle. It is a principle which applies also to the other professions concerned. To abandon this principle for children under 16 might cause some not to seek professional advice at all. They could then be exposed to the immediate risks of pregnancy and of sexually-transmitted 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.
“The Department realises that in such exceptional cases the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor.”
This revised text is, no doubt, less forthright than its predecessor in its 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.
As a result of the issue of the revised text Mrs. 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:
“Concerning the new D.H.S.S. guidelines on the contraceptive and abortion treatment of children under both the legal and medical age of consent, without the knowledge or consent of the parents, can I please ask you for a written assurance that in no circumstances whatsoever will any of my daughters (Beatrice, Hannah, Jessie and Sarah) be given contraceptive or abortion treatment whilst they are under 16 in any of the family planning clinics under your control, without my prior knowledge, and irrefutable evidence of my consent? Also, should any of them seek advice in them, can I have your assurance that I would be automatically contacted in the interests of my children's safety and welfare? If you are in any doubt about giving me such assurances, can I please ask you to seek legal medical advice.
She received the following reply on 27 January 1981:
“Thank you for your letter of 21 January addressed to the chairman and he has asked me to reply to you on his behalf. I enclose for your information a copy of the official guidance issued in May 1980, together with a copy of a recent press statement made by the Minister of 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.”
This did not satisfy Mrs. Gillick
and further correspondence ensued until on 3 March 1981 Mrs. Gillick
wrote a final letter making her position clear:
“I formally FORBID any medical staff employed by 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.”
This produced no change in attitude and eventually on 5 August 1982, Mrs. 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:
“(i) a declaration against the first defendants and the second defendants 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 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.”
On 26 July 1983, Mrs. 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.
It is however clear that even in the best of families something may go suddenly and badly wrong and that, if and when it does, a parent may either be unaware of the fact or left with little time in which to 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  1 KB 223
It is clear that respectable and responsible people may hold different, strong and sincere 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.
This appeal, however, is concerned only with the legal position, albeit that in the course of ascertaining the legal position the court may resort to established public policy which itself may be based on some social, moral or other non-legal judgment. 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.
Although the contentions advanced on behalf of the plaintiff were divided under a number of heads and are clearly set out in a most helpful skeleton argument, there were before Woolf J. and in this court in essence two matters to be investigated, namely: (a) the extent of a parent's rights and duties with respect to the medical treatment of a girl under 16; and (b) the extent to which, if at all, the provisions of the criminal law assist in the determination of the extent of the parents' rights and duties in relation specifically to contraceptive or abortion advice and treatment.
In relation to the first of these two matters it is contended for the plaintiff that a parent has a right to determine whether advice shall be given or not and a further right to determine whether, if treatment is recommended, it shall be given. This is in effect a right to withhold consent and it is contended that this right cannot be overridden by anyone save the court. If a doctor disagrees with a parent he must, it is submitted, seek the ruling of the court. This is quite apart from the question of trespass. If, however, the treatment would, apart from consent, constitute a trespass no consent given by a child under 16 will prevent it being such.
In relation to the second of the two matters the plaintiff contends that in the specific case of contraception the provisions of the criminal law are such that any doctor giving contraceptive advice or treatment will either commit a criminal offence or will be acting against a clearly defined public policy.
With this preliminary I turn to these two matters considering, in relation to each of them, first the statutory background and then any relevant case law.
The extent of a parent's rights and duties with respect to the medical treatment of a child
( a) The statutory background
Until the Family Law Reform 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:
“(1) The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian. (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.”
The construction of this section is the subject of dispute. For the plaintiff it is contended that, but for section 8, no consent could be given by a minor, and that the effect of subsection (1) is to lower the age of consent in the particular case to 16 but that at any lesser age, if consent is required, it can only be given by a parent or guardian. Subsection (3) is, it is submitted, merely to make it clear that, where a parent's consent has been obtained, it is not made ineffective because a consent from the minor could be or could have been obtained under subsection (1).
For the defendants, however, it is contended that all that the section was doing was to make it clear (i) that in the case of a person who had attained the age of 16 the doctor had no need to satisfy himself that the minor was of sufficient understanding to give consent and (ii) that the purpose of subsection (3) was merely to ensure that a consent by a minor under 16 which would have been valid prior to the Act could still be relied on.
There is no decided case that, prior to the 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.
Although prior to 1969 there was no statutory provision relating to consent to treatment, the National 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:
“In the case of an infant who has attained the age of 16 years and is capable of expressing his own wishes, any such arrangements as are mentioned in the foregoing subsection may be made, carried out and determined notwithstanding any right of custody or control vested by law in his parent or guardian.”
This last provision plainly proceeds on the basis that the right of custody or control 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:
“(1) In this 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.”
It will be observed that there is a recognition that the father and mother have both rights and duties in respect of the child himself and his property and that, subject to the specific exception, a person is incapable of surrendering or transferring any parental right or duty. Under this provision, therefore, a parent cannot opt out of his rights and duties whatever they may be. Sections 86 and 87(2) then deal with the question of legal custody and actual custody:
“86. In this Act, unless the context otherwise requires, ‘legal custody’ means, as respects a child, so much of the parental rights and duties as relate to the person of the child ( including the place and manner in which his time is spent); 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.
“87(2) While a person not having legal custody of a child has actual custody of the child he has the like duties in relation to the child as a custodian would have by virtue of his legal custody.” (The emphasis is mine).
Thus a legal custodian and 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.
On the face of it, if there is a right and duty to determine the place and manner in which a child's time is spent, such right or duty must cover the right and duty completely to control the child, subject of course always to the intervention of the court. Indeed there must, it seems to me, be such a right from birth to a fixed age unless whenever, short of majority, a question arises it must be determined, in relation to a particular child and a particular matter, whether he or she is of sufficient understanding to make a responsible and reasonable decision. This alternative appears to me singularly unattractive and impracticable, particularly in the context of medical treatment. If a child seeks medical advice the doctor has first to decide whether to 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.
Finally in this section it is necessary to mention section 48 of the Education 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:
“Provided that if the parent of any pupil gives to the authority notice that he objects to the pupil availing himself of any medical treatment provided under this section, the pupil shall not be encouraged … so to do.”
A senior pupil is by section 114 a person between the ages of 12 and 19. The age of majority was, at the time, 21. This provision appears to me a plain recognition of the right of a parent to control the treatment provided for a child up to the age of 19. Taken together, the statutory provisions in my opinion support Mrs. Gillick's
( b) The case law
There are two classes of case to be considered: first those cases which are specifically concerned with medical treatment, and secondly those which are not. In the first class of case I refer first to In re D (A Minor) (Wardship: Sterilisation)  Fam. 185. In that case a child, D., was severely handicapped and, for reasons which do not matter, her parents decided, when she was 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:
“This operation could, if necessary, be delayed or prevented if the child were to remain a ward of court and, as Lord Eldon L.C. so 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.”
As to the second, she continued:
“In considering this 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).
The first of these passages recognises explicitly that unless the wardship was continued the mother could and would proceed with the proposed operation, and the second that in refusing leave to have the operation performed the court was superseding the parents' rights.
Two further matters require mention before I leave this case. First, Dr. Gordon asserted that provided he had the consent of the mother the decision whether the operation should be performed was within his and Miss Duncan's sole clinical judgment. As to this the judge said, at p. 196:
“I cannot believe, and the evidence does not warrant the 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.”
It is to be noted that in the present case an even larger claim is asserted namely, on the basis of clinical judgment alone to proceed without the parent's consent, and contrary to her known wishes and express prohibition. Secondly, albeit it may not need stating since there is no dispute, the judge made it quite clear that once a child is a ward of court no important step in the life of that child can be taken without the consent of the court.
It was not seriously contended by Mr. Laws that the giving of contraceptive advice and treatment to a girl under 16 would be other than an important step in her life. Assuming that it would be, it follows that, in the case of a ward, a doctor who was approached for contraceptive advice and treatment in the case of such a person would be obliged to inform the court and obtain its consent. Since, in wardship, the court is under a duty to 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.
The next case, In re P. (A Minor) (1981) 80 L.G.R. 301, is a decision of Butler-Sloss J. in chambers, reported with her permission. P. was aged 15 and had become pregnant for the second time. She was in the care of the local 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.”
Butler-Sloss J. stated that, in reaching her conclusions, she had found helpful what had been said by the House of Lords about parental rights and obligations in a case much relied on by Mr. Laws for the defendants, namely J. v. C.  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)  Fam. 40 was also relied on but that case also affords no real assistance.
The cases which do in my opinion assist are those cases relating to the age of discretion relied upon by the plaintiff, all of which Mr. Laws submits should be disregarded on the ground that they related to custody.
In Reg. 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:
“Now the cases which have been decided on this subject shew that although a father is entitled to the custody of his children till they attain the age of 21, this court will not grant a habeas corpus to hand a child which is below that age over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide, which we may safely follow, in pointing out 16 as the age up to which the father's right to the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him.”
The repudiation of the notion that intellectual precocity can hasten the age at which a minor can be considered to be of sufficient discretion to exercise a wise choice for its own interests and the fixing of a single age is to be noted.
In In re Agar-Ellis (1883) 24 Ch D. 317, a father put restrictions on his 17-year-old daughter's intercourse with her mother. The girl was at the time a ward of court. Sir William Brett M.R. said, at p. 326: “the father has the control over the person, education, and conduct of his children until they are 21 years of age. That is the law.” It had been argued that because in habeas corpus proceedings a girl of 16 or more would not be delivered up to her father if she was content to remain where she was, this showed that the father's right of custody and control terminated altogether at age 16, but this argument was rejected on the ground that habeas corpus was a special case. Cotton L.J., having quoted the passage from Cockburn C.J. in Reg. v. Howes, 3 E. & E. 332 set out above, said, at p. 331:
“Therefore the Lord Chief Justice there most distinctly recognises what, having regard to the Act, I should have thought was beyond dispute, that during infancy and over 16 the right of the father still continues.”
The 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.
The judgment which, however, I find of most assistance is that of Bowen L.J. at pp. 335–336, from which I quote at greater length:
“Now a good deal of this discussion has turned upon the exact limits of parental 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.
“I do not desire to elaborate the matter more than is necessary. The history I think of the term ‘natural guardianship’ and of its extension, more especially in Courts of Equity, to the father's natural custody and to the 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.”
This case has been subject to some trenchant criticism since, but it makes it perfectly clear that the father had a legal right of custody until 21, the then age of majority, and that that right included a right of control over the person. It also specifies as being established one age of discretion for boys and one for girls.
The trenchant criticism above referred to appears in Hewer v. Bryant  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:
“I would get rid of the rule in In re Agar-Ellis, 24 Ch D. 317 and of the suggested exceptions to it. That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unquestioning obedience to his commands. If a son disobeyed, his father would cut him off with a shilling. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21. I decline to accept a view so much out of date. The common law can, and should, keep pace with the times. It should declare, in conformity with the recent Report of the Committee on the Age of Majority [Cmnd. 3342, 1967], that the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”
The more general discussion appears in the judgment of Sachs L.J., at pp. 372–373, of which I quote only that part of it from p. 373:
“In its wider meaning the word ‘custody’ is used as if it were almost the equivalent of ‘guardianship’ in the fullest sense — whether the guardianship is by nature, by nurture, by testamentary disposition, or by order of a court. (I use the words ‘fullest sense’ because guardianship may be limited to give control only over the person or only over the administration of the assets of an infant.) Adapting the convenient phraseology of counsel, such guardianship embraces a ‘bundle of rights,’ or to be more exact, a ‘bundle of powers,’ which continue until a male infant attains 21, or a female infant marries. These include power to control education, the choice of religion, and the administration of the infant's property. They include entitlement to 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.”
Despite his 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.
The next in this group of cases which requires mention is Reg. v. D.  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.
Both questions were answered in the affirmative. For present purposes it is only necessary to refer to it by reason of certain comments made by Lord Brandon of Oakbrook (with whose speech all other members of the Appellate Committee agreed) concerning the Irish case People v. Edge  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,  A.C. 778, 803:
“There is, in my 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.”
He reverted to this matter in these terms, at p. 806:
“In my opinion, to 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.”
Although Lord Brandon is dealing with the criminal law and we are not, the opinion of the Appellate Committee that a child under 14 can in certain circumstances for the purposes of kidnapping give a valid consent may clearly be of significance and requires examination.
By way of preliminary I must, with respect, point out that in Edge's case the age of 14 was considered of significance because in that case the allegedly kidnapped child was a boy and for a boy the age of discretion was 14, whereas in the case of a girl it was 16. The passages which I have quoted must therefore be considered with appropriate amendments to cover the two cases.
As to the passage at p. 806, Lord Brandon envisages for the purposes of the criminal law three questions: (1) Whether the child was so young that absence of consent would be a necessary or legal inference from its age. This he regards as a matter of ruling by the judge although he does not give any guidance as to how young a child must be before any such inference is drawn. (2) Whether, if the judge does not rule that absence of consent is presumed, the particular child had at the time sufficient understanding and intelligence to give its consent — a question for the jury. (3) If the jury are satisfied that the particular child had such understanding and intelligence whether they are also satisfied that he or she did not give consent.
It appears to me that if at some age there is a necessary inference that consent is absent that age must be a fixed age even for the purposes of the criminal law. The fixed age might be different for girls and boys but I am unable to see how it can 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.
Whatever may be the case with regard to the criminal law and kidnapping, however, and clearly 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.
In relation to other aspects of custody and control there must also be a fixed age in order that parents, children, and those dealing with children may know where they stand and what are their powers, rights, duties or obligations. It is difficult to see why any other age than the age of discretion should be applicable and there is nothing in the authorities to point to any lower age.
So far as kidnapping is concerned, if the 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.
In the field which is presently under consideration, however, I regard any such consideration as both impractical and undesirable. A child may be of sufficient understanding and intelligence to give a consent before, or not until after, it has attained whatever may be the fixed age, but if there be no such age then neither parent, child, nor strangers will know what their respective positions are. In the present field I would not therefore, unless driven, 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.
It is important to remember that, wherever a child is concerned, the court is in the background in order that, in the event of dispute, it may override, in effect, everyone, in the interests of the child. In the case of medical treatment, contraceptive or otherwise. it cannot exercise its jurisdiction to protect children unless the doctor either seeks the court's ruling himself or informs the parent of what he proposes to do, so that the parent may either consent or him or herself seek the court's ruling. If the doctor takes either course the parent is necessarily informed. It is however a 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.”
Talk of clinical judgment is in my 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.
I fully appreciate that information to the parent may lead to family trouble and that knowledge that going to the doctor involves disclosure to parents may deter others from seeking advice and treatment with, possibly, highly undesirable or even tragic results. A parent who, for example, had fought hard for the rights which Mrs. 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.
I have mentioned the foregoing wider aspects in order that it should be clear that I have not forgotten them. Before passing to another subject I mention one further matter. If a child can, without a parent's knowledge and consent, seek and receive contraceptive advice and treatment, he or she can, logically, also presumably do so in respect of other treatment. There are clearly inherent dangers in this. A mother who, for example, does not know that her child has had some particular injection or is taking some form of drug, may, if the child is in an 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.
So far as civil law is concerned I have not found anything in any case which supports the 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.
That such rights (and duties) exist cannot be doubted. Nor can it be doubted that up to some age no one save the court is entitled to interfere. The only question it seems to me to be determined is what that age is.
Under the common law it appears to me to be plain that, In general, that age is the age of majority so far as outsiders are concerned, albeit that in habeas corpus proceedings someone who has reached the age of discretion may give a consent which will prevent a parent recovering custody and that for the purposes of a defence to a common law charge of kidnapping the consent of someone under the age of discretion may suffice.
I am of opinion that the present law is that, save in so far as changed by statute or by such recognised exceptions as marriage or joining the armed forces, the age of majority prevails. Indeed, if it does not, the jurisdiction of the court which lasts till the age of majority can be stultified, for decisions can be taken which may be against the interests of the child without the parents knowing and thus having the opportunity to resort to the court for its assistance.
The criminal aspects
Before Woolf J., consideration of the question of the possible criminal liability of a doctor providing contraceptive advice and treatment to a girl under 16 was much canvassed, the plaintiff contending that a doctor who did so would be committing an offence, under section 28 of the Sexual Offences Act 1956, of aiding and abetting an offence under section 6 of that Act.
Whether in an individual case a doctor who followed the guidance notes would commit a criminal offence of either kind must depend on the circumstances. Mr. Wright for the plaintiff conceded that in some cases he would not and Mr. Laws conceded that in some cases he would. Both of these concessions were inescapable. They make it both unnecessary and undesirable to consider the direct impact of the criminal law upon the position of doctors proceeding in 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.
Sections 50 and 51 of the Offences against the Person 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.
By the Offences against the Person 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.
Ten years later, the Criminal Law Amendment 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.
The 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:
“(2) Where a marriage is invalid under section two of the Marriage 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).”
Since 1956 there have been two changes of importance. First by section 2 of the Indecency with Children 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.
So far as these two particular offences are concerned it will thus be seen that from 1861 to 1960 Parliament has seen fit, by way of the criminal law, progressively to increase the protection to the young, raising the ages at which their consent would prevent intercourse from being a crime from 12 to 13 to 16 and that, as late as 1960, additional protection was 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.
As to the graver crime, until 1967 anyone who was aware that an offence had been committed would have been under a positive duty to report it to the police or other lawful 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  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.
For present purposes the precise limits of the offence are of no importance. What is or may be of some importance, however, is that the graver crime was, until 1967, considered so serious that there was a public duty to report it.
Other sections of the 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.
As to section 14, a normal preliminary to contraceptive advice and treatment is a 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.
Section 19 affords a parent greater protection than habeas corpus, for in that case if a girl is 16, she can in that connection give a 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.
Since by sections 25 and 26 anyone who allowed sexual intercourse with a girl under 16 to take place on his premises would commit an offence and, if the girl were under 13, would until 1967 have committed a felony, it would, as it seems to me, be odd to say the least if it was perfectly lawful to take 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.
These sections are the successors of like provisions in the 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.
The provisions of the criminal law all appear to me to support the 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.
It appears to me that it is wholly incongruous, when the act of intercourse is criminal, when permitting it to take place on one's premises is criminal and when, if the girl were under 13, failing to report an act of intercourse to the police would up to 1967 have been criminal, that either the department or the area health authority should provide facilities which 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.
It may well be that it would be highly unlikely that, in the case of a girl aged, say, 10, a doctor would do any such thing, but that is in my 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.
I can find no additional cases on the criminal aspects which assists in relation to the limited area in which for present purposes it is relevant.
In the final analysis the position is in my 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.
In the light of the above, I conclude that as a matter of law a girl under 16 can give no 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.
I conclude further that any doctor who advises a girl under 16 as to contraceptive steps to be taken or affords contraceptive or abortion treatment to such a girl without the knowledge and consent of the parent, save in an emergency which would render consent in any event unnecessary, infringes the legal rights of the parent or guardian. Save in emergency, his proper course is to seek parental consent or apply to the court.
I express no 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.
I express my gratitude to both counsel for their assistance and for eschewing the sort of arguments which will doubtless follow the judgments given today.
I would allow the appeal and grant the second declaration sought amended so as to add at the end, “save in cases of emergency or with the leave of the court.”
As to the first declaration, it cannot be granted in the terms sought, but it is clear that the result of what I have concluded is that the issue and subsequent maintenance of both the original and revised form of section G were and are contrary to law. I would therefore assume that the department and the local 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:
“That the notice issued by the department in December 1980, setting out a revised form of section G of the Memorandum of Guidance issued in May 1974, is contrary to law.”
Fox L.J. In January 1981 Mrs. 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.
Mr. Laws for the Department of 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.  AC 668
. The statutory background to that decision was section 1 of the Guardianship of Infants Act 1925 which is as follows:
“(1) Where in any proceeding before any court (whether or not a court within the meaning of the Guardianship of Infants 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.”
These provisions are re-enacted in the Guardianship of Minors Act 1971, section 1.
Whether the “welfare” principle enacted by the 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)  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:
“This statute, however, in my 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.”
In J. v. C.  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).
In short, I see no reason why the decision in J. 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.
I come then to the question whether parents have any relevant rights in the present case. Parliament seems clearly to have 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)).
And section 86 of the Children 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) …”
For the purpose of identifying any relevant rights I think one must start with custody. At common law the father had a right to custody of his legitimate child during minority. That right seems to have been more or less absolute in the absence of evidence that the father would abuse it to the detriment of the child. Thus in Rex 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  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:
“It has been said that we ought to consider the interest of the ward. Undoubtedly. But this court holds this principle — that when, by birth, a child is subject to a father, it is for the general interest of families, and for the general interest of children, and really for the interest of the particular infant, that the court should not, except in 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.”
The father in that case had put restrictions upon contact between his 16-year-old daughter and her mother. The court refused to interfere.
In the 1878 case Sir Richard Malins V.-C. said, 10 Ch D. 49, 56:
“The father is the head of his house, he must have the control of his family … and this court never does interfere between a father and his children unless there be an abandonment of the parental duty …”
It seems that even in their own day the Agar-Ellis cases not surprisingly aroused strong feelings and were probably one of the causes which led to section 5 of the Guardianship of Infants Act 1886 (49 & 50 Vict.c. 27) which provided that the court might
“upon the application of the mother of any infant … make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents …” See per Scrutton L.J. in In re Carroll (An Infant)  1 K.B. 317, 335.
Lord Denning M.R. in Hewer v. Bryant  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  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.
The next question is what does custody involve. I think that its central feature is control. No doubt it involves care of the child but, without control, the care may be hindered. It is significant that in defining “legal custody” section 86 of the Children 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  2 Q.B. 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).
The circular refers to the “clinical judgment of the doctor.” On the evidence before us I am not clear that “clinical judgment” will normally be a factor of real consequence. The girl generally is not ill; she is coming for contraceptive treatment to enable her to have sexual intercourse without risk of pregnancy. The problem, it seems to me, is in most cases more moral or social than clinical.
It is said that if a doctor cannot give contraceptive treatment to a girl under 16 without the knowledge of the parents, some girls may be afraid to come to the doctor at all and will risk pregnancy. I see the force of that, but all we can do in this case is to endeavour to state the existing law. If the law as it stands is thought to involve more risks to young girls than it avoids (as to which opinions may differ), Parliament may have to intervene. But to cut out the parents from knowledge of the intended treatment, bearing in mind that one is dealing with girls of 15 and under, would be an important matter of public policy.
I have not so far examined the question whether a girl under 16 could herself give consent to contraceptive treatment and so override any parental rights. Section 8(1) and (3) of the Family Law Reform Act 1969 provide:
“(1) The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his person, shall be as effective as it would be if he were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian. (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.”
It is said on behalf of Mrs. 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.
That the common law developed a principle enabling a child to override parental wishes and to consent to the taking of major decisions concerning him provided it could be shown that he was of sufficient understanding seems to be unlikely. It is inconvenient in practice in that it may give rise to subsequent doubts, and difficulties of proof, as to whether the child does have sufficient understanding. The degree of such understanding might 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:
“We repudiate … the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury.”
The statute referred to is 4 & 5 Ph. & M. c. 8 which I have already mentioned.
Again, in Reg. v. Gyngall  2 Q.B. 232, 250 Kay L.J. said:
“Because the court cannot inquire into every particular case the law has now fixed upon certain ages — as to boys the age of 14 and as to girls the age of 16 — up to which, as a general rule, the court will not inquire upon a habeas corpus … as to the consent of the child to the place wherever it may be.”
These quotations are dealing with habeas corpus but I think they state general objections to investigation of the 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.
The result, in my 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.
A possible approach to the whole matter is that while the doctor should be bound to inform the parents of his intention to provide contraceptive treatment, if the parents do not consent within a reasonable time he should be at liberty to proceed without their consent even though consent has been refused. This would enable the parents to make an application to the court to determine the matter. I do not think that is in line with the legal position. It reverses the existing legal position which, subject to the ultimate power of the court, gives the final decision to the parents and not to the doctor. That is the consequence of the right of control which, as I have indicated, seems to me to follow from the right to custody. And I do not think that persons not having custody can take upon themselves the right to give consent. I appreciate that this may produce an unsatisfactory position if, for example, the parents cannot be found or the doctor profoundly disagrees, on the particular facts of the individual case, with their refusal to give consent. In such cases the local authority can, if it thinks fit, seek to have the matter determined by the court.
In dealing with this case I would not, in any way, wish to underrate the 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.
In so far as we are concerned, for the purposes of section 1 of the Guardianship of Minors 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.
Looking at the whole matter, I think that in substance Mrs. 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.
I have not in this judgment examined the criminal law. The judge dealt with it in order to dispose of an argument that a doctor who provided contraceptive treatment to a girl under 16 might be guilty of a criminal offence. I express no 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.
I agree with the conclusions (1) to (8) in the judgment of Parker L.J. and with the order which he proposes. I would allow the appeal accordingly.