8671788
Description
Mind Map by Ruaraidh Simpson, updated more than 1 year ago
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Created by Ruaraidh Simpson
almost 7 years ago
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Children's Capacity and
Children's Rights
(England and Wales)
- Age of Majority
- 18 rather than 16 KEY in england and wales
- Children Act 1989
- s.1(1) when a court determines any question with
respects to (a) the upbringing of a child ... the child's
welfare shall be the court's paramount consideration
- s.3(1) "parental responsibility" means all rights, duties,
powers, responsibilities and authority which by law a
parent of a child has in relation to the child
- s.8(1) ... "a specific issue order" means an order giving directions
for purpose of determining a specific question which has arisen in
connection with any aspect of PR for a child
- s.8(1) ... "a specific issue order" means an order giving directions
for purpose of determining a specific question which has arisen in
connection with any aspect of PR for a child
- s.3(1) "parental responsibility" means all rights, duties,
powers, responsibilities and authority which by law a
parent of a child has in relation to the child
- s.1(1) when a court determines any question with
respects to (a) the upbringing of a child ... the child's
welfare shall be the court's paramount consideration
- Family Law (Reform) Act 1969
- s.8(1) the consent of a minor who has attained the age of 16 to any surgical, medical
or dental treatment which, in 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 from parent or guardian
- s.8(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
- s.8(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
- s.8(1) the consent of a minor who has attained the age of 16 to any surgical, medical
or dental treatment which, in 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 from parent or guardian
- Children Act 1989
- 18 rather than 16 KEY in england and wales
- Gillick Competency
- opportunity to challenge
parental responsibility
- Re C (A Minor) (Leave to Seek Section 8 Order) [1994] FLR 26
- question in terms of residency, child had fallen out with parents and was staying with a friend
who she wished to continue staying with. Child attained support of a solicitor and questioned
whether or not she could obtain a residency order for herself. Court refused and told child to
go and speak to her parents
- Refused to entertain application as it would have meant that a child had one up on her parents
- Refused to entertain application as it would have meant that a child had one up on her parents
- question in terms of residency, child had fallen out with parents and was staying with a friend
who she wished to continue staying with. Child attained support of a solicitor and questioned
whether or not she could obtain a residency order for herself. Court refused and told child to
go and speak to her parents
- Re C (A Minor) (Leave to Seek Section 8 Order) [1994] FLR 26
- Inability to refuse treatment?
- Re R (A Minor) (Wardship: Consent to Treatment) 1991
- AND Re W (A Minor) (Medical Treatment: Court's Jurisdiction) 1992
- anorexia and was refusing treatment,
because she was a child until she was 18
the court had a duty to look after her and
therefore was able to override her decision
since the condition could kill her.
- s.8 1969 Act - child of 16/17 can give consent to be taken as if they are an
adult. If a child is Gillick competent and refuses treatment, anyone with
PR&R's over that child loses their right to act as a legal representative BUT
the court can still override decisions
- s.8 1969 Act - child of 16/17 can give consent to be taken as if they are an
adult. If a child is Gillick competent and refuses treatment, anyone with
PR&R's over that child loses their right to act as a legal representative BUT
the court can still override decisions
- Re E (A Minor) (Wardship: Medical Treatment) 1993
- Boy of almost 16 refused blood transfusions to
treat leukaemia as he was a Jehovah's Witness.
Order sought from Court
- Held that there was a question raised whether the parents' refusal of consent
was enough to be decisive, for a court to decide what is a reasonable exercise
of PR&R's they must apply the standard of the ORDINARY parent, which of
course does not involve Jehovah's Witnesses/other faiths
- stated that because the child was under 16 the court had to
make a decision for him for his best interests. When he turned
16 he refused the treatments and died after having his beliefs
disregarded by the court nonetheless
- stated that because the child was under 16 the court had to
make a decision for him for his best interests. When he turned
16 he refused the treatments and died after having his beliefs
disregarded by the court nonetheless
- Held that there was a question raised whether the parents' refusal of consent
was enough to be decisive, for a court to decide what is a reasonable exercise
of PR&R's they must apply the standard of the ORDINARY parent, which of
course does not involve Jehovah's Witnesses/other faiths
- Tameside and Glossop Acute Services Trust v CH 1996
- Woman who was 9 and a half months pregnant, mental health disorder
led her to believe that doctors intention through use of anaesthesia was
to kill the foetus. Could she refuse anaesthesia?
- would lead to death of both herself and child - court decided based on woman's interests and those of the
child which in legal theory is wrong considering the foetus rights do not yet exist in the eyes of the law
- would lead to death of both herself and child - court decided based on woman's interests and those of the
child which in legal theory is wrong considering the foetus rights do not yet exist in the eyes of the law
- Woman who was 9 and a half months pregnant, mental health disorder
led her to believe that doctors intention through use of anaesthesia was
to kill the foetus. Could she refuse anaesthesia?
- Boy of almost 16 refused blood transfusions to
treat leukaemia as he was a Jehovah's Witness.
Order sought from Court
- anorexia and was refusing treatment,
because she was a child until she was 18
the court had a duty to look after her and
therefore was able to override her decision
since the condition could kill her.
- If a child under 16 is refusing medical treatment,
the court is entitled to overrule then disregard
the child's decision, regardless if they are
competent.
- Notwithstanding Gillick? 15 y/o girl refusing treatment for
mental health issues. Was she competent? that is not the
question, she may be Gillick competent and mayunderstand
the nature of the treatment however this did not matter as
the welfare of a child is paramount and children are anyone
under the age of 18, no matter whether they are competent
or not
- Notwithstanding Gillick? 15 y/o girl refusing treatment for
mental health issues. Was she competent? that is not the
question, she may be Gillick competent and mayunderstand
the nature of the treatment however this did not matter as
the welfare of a child is paramount and children are anyone
under the age of 18, no matter whether they are competent
or not
- AND Re W (A Minor) (Medical Treatment: Court's Jurisdiction) 1992
- Re R (A Minor) (Wardship: Consent to Treatment) 1991
- opportunity to challenge
parental responsibility
- Competence, Conflict and Care
- Is the child found to be competent?
- If yes, can
persons with
PR&R's interfere
to challenge a
child's decision?
What is the role
of the court
where there is a
competent child?
- If no, what if persons
with PR&R's are in
dispute over a decision?
what is the role of the
court where the child is
not competent?
- If yes, can
persons with
PR&R's interfere
to challenge a
child's decision?
What is the role
of the court
where there is a
competent child?
- Is the child found to be competent?
- Children's Rights
- special protective laws
- Children and Young Person's Rights
Commissioners
- Social work, educational provision and welfare benefits
- ECHR & HRA, UNCRC
- special protective laws
- Should children have a right not to be assaulted?
- A v UK [1998] 2 FLR 959
- A was a 10 y/o boy who had been beaten
with a rod on his posterior and the back of
his legs. Beating left bruising which was
seen by someone else and reported, had the
State left enough protection of rights not to
be assaulted?
- State allowed a defence of
reasonable chastisement, held state
had not protected the boy properly
as it left a very wide defence in the
ECHR Art. 3
- not torture but inhumane treatment UK
breach of boys ECHR rights as although it did
prosecute the persons responsible, they did
leave room for a defence which should not
have been allowed for such acts. English case
but Scottish government also acknowledges
- not torture but inhumane treatment UK
breach of boys ECHR rights as although it did
prosecute the persons responsible, they did
leave room for a defence which should not
have been allowed for such acts. English case
but Scottish government also acknowledges
- State allowed a defence of
reasonable chastisement, held state
had not protected the boy properly
as it left a very wide defence in the
ECHR Art. 3
- A was a 10 y/o boy who had been beaten
with a rod on his posterior and the back of
his legs. Beating left bruising which was
seen by someone else and reported, had the
State left enough protection of rights not to
be assaulted?
- "Reasonable Punishment" AKA
"Justified Battery" s.58 Children
Act 2004
- Scottish equivalent - "Justifiable Assault"
Criminal Justice (Scotland) Act 2003
- Scottish equivalent - "Justifiable Assault"
Criminal Justice (Scotland) Act 2003
- UN Convention on the rights of the child
- A v UK [1998] 2 FLR 959
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