Child Competency

Question 1

History of Paternalism case list?

Answer 1

Re R [1992]

Re W [1993]

Re S [1994]

Question 2

Applied Gillick: Mental state fluctuates = Not competent in law

Answer 2

Re R

Question 3

Child’s statutory right to consent may be removed as child not deemed competent to decide

Lord Donaldson: Parents and court may overrule child’s refusal of treatment

[anorexic >16yo]

Answer 3

Re W

Question 4

Court biased against a young-looking person with ‘childlike’ beliefs (based on her religion)

[against blood treatment]

Answer 4

Re S

Question 5

Child’s developmental or basic interest should prevail over child’s autonomy

[academic quote]

Answer 5

Eekelaar

Question 6

What do children under 18 have competence to decide?

Answer 6

1. Marriage (from 16yo to 18yo)

2. Accommodation from local authority (from 16yo)

Question 7

How can a child’s views be heard in court?

Answer 7

1. ‘Tandem’ model
2. Engage own solicitor
3. Self-representation
4. Write letter to judge or meet privately
5. CAFCASS officer’s report

Question 8

What is the tandem model?

Answer 8

• Rule 16.4 Family Procedure Rules 2010
• EXCEPT in Declaration of Parentage cases
• Court may appoint a guardian ad litem and a specialist family solicitor who then instructs a specialist family barrister

Question 9

Child engaged his own solicitor to represent him

Judge heard child’s views in a separate interview

Answer 9

A father v A mother and Stepfather and Young Person

Question 10

Statute for self-representation?

Answer 10

• Rule 16.2 FPR 2010
• EXCEPT in Adoption or Placement proceedings

• Child can apply for leave to be a party to the case
— Mabon v Mabon

Question 11

What is the Gillick test?

Answer 11

• Child’s consent to (contraceptive) treatment to be respected if child has the maturity and intelligence to understand the treatment and its implications
• Not applicable if there is a statute-prescribed age of legal capacity

Question 12

Applied Gillick to abortions

Answer 12

Axon

Question 13

Child must have all knowledge necessary to be competent

[case list]

Answer 13

Re L [1998]

A NHS Trust v A, B, C and a local authority

Question 14

To represent themselves, children must be sufficiently aware of the situation at hand

(NO NEED to weigh disadvantages of self-rep against advantages, as first thought)

Answer 14

Mabon v Mabon

Question 15

Court may appoint child to be party to the case under special circumstances, e.g. if situation is exceptionally messy

Answer 15

Re A [2015]

Question 16

Shift in judicial attitudes towards calling children as witnesses?

Answer 16

R v Wallwork [1958]
• Lord Goddard CJ: Calling a 5yo as a witness was “ridiculous”, jury wouldn’t attach any value to it

R v Wright and Ormerod [1990]
• Praised the “good sense” behind proposition of child as witness

Question 17

Small child called to be a witness at a criminal trial because she passed the statutory criteria

[step-father rape]

Answer 17

R v Barker [2010]