Children, Capacity and Rights

Question 1

In law is a foetus regarded as a child?

Answer 1

NO

- Children only come in to existence at birth

Question 2

What rights does a child obtain on birth?

Answer 2

(a) Human Rights

(b) Right to own property

Question 3

What is the nasciturus rule?

Answer 3

So long as a child is subsequently born alive, an unborn child can be capable of having rights at prenatal time

Question 4

By referring to legislation when does a child legally lose the title of ‘child’?

Answer 4

s1(1) Age of Majority (Scotland) Act 1969

18 years old.

Question 5

By referring to legislation, at what age does an individual not have legal capacity to enter transactions?

Answer 5

Any age below 16

- As per the Age of Legal Capacity (Scotland) Act 1991 s. 1(1)(a)

Question 6

At what age does an individual have legal capacity to enter any transaction?

Answer 6

16 or above

- As per the Age of Legal Capacity (Scotland) 1991 s. 1(1)(b)

Question 7

The significant age is seen as 16 in Scotland, is that the same for E and W?

Answer 7

NO

- 18

Question 8

What did Lord Scarman make clear in the ‘Gillick’ case?

Answer 8

• That where a child reaches a certain level of understanding and intelligence he/she can make their own decisions.

Question 9

What did the ‘Gillick’ case allow doctors to do?

Answer 9

• exceptional cases a doctor will be entitled to give contraceptive advice treatment to girl <16 without her parents’ knowledge & consent
• so long as the doctor acted in good faith and ad regard to child’s best interests

Question 10

In exceptional cases a doctor will be entitled to give contraceptive advice and treatment to a girl under the age of 16 without her knowledge and consent if the doctor is satisfied that…?

Answer 10

(i) girl will understand the advice;
(ii) he cannot persuade her to inform her parents or allow him to inform [them] that she is seeking contraceptive advice;
(iii) she is very likely to begin or to continue having sexual intercourse with or without contraceptive treatment;
(iv) unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer; &
(v) her best interests require him to give her contraceptive advice, treatment or both without parental consent

Question 11

What happened in Vo v France 2005?

Answer 11

• Case where vietnamese woman name Vo went for routine ante-natal appointment
• By coincidence at the same time another vietnamese woman name Vo was there for her contraceptive coil to be removed
• due to language skills lacking, there was a mix up between patients
• This results in Vo’s amniotic sac being penetrated an her unborn child died
• Vo raised an action in the French criminal court for unintentional homicide
  HELD
• Doctor was innocent as the unborn foetus was not regarded as a “human person”
  APPEAL
• the case made its way to the ECtHR
• Vo argued that the Government’s failure to bring criminal action against the doctor were in violation of Article 2 of the ECHR
  HELD - No breach of Article
• Court found the foetus not to be protected but failed to define “everyone”

Question 12

What happened in Kelly v Kelly 1997?

Answer 12

• Case where husband sought an interdict against wife from terminating pregnancy on the grounds that was contemplated was an actionable wrong
• he argued that any injury sustained by the child in utero was an actionable at the instance of the child acting through parent/guardian
  HELD
• Argument rejected by the father
• They accepted that a child does develop rights to injury sustained in utero, but only at birth to those rights become available
• The unborn child is not a legal persona which was separate from the mother

Question 13

Are there any exceptions to the rules on a children’s capacity?

Answer 13

YES

- Outline in Section two of the AOLC(S)A 1991

Question 14

Can a child gain testamentary capacity under the age of 16?

Answer 14

YES

- s.2 of the AOLC(S)A 1991

Question 15

EXAMPLE

• a child ages 8 enters a shop
• they approach the cashier with a bar of chocolate to buy

Does the child have capacity to buy the chocolate bar?

Answer 15

YES

- Despite being under 16, under s.2(1) of the AOLC(S)A 1991 she would be able to purchase the chocolate

Question 16

Section 2(4) of the Age of Legal Capacity (Scotland) Act provides a person under the age of 16 can consent to their own medical treatment.

What does the section give children the right to do?

Answer 16

If competent, this section gives children the right to take risks or make wrong choices

Question 17

EXAMPLE:
If a child of high competence wishes to undertake surgery can his parents veto this surgery if they believe it not to be in his best interests?

Answer 17

NO

• Parents have no right to veto if the child is deemed competent under s.2(4),
• this extends even where the treatment is not necessarily in the child’s best interest

Question 18

EXAMPLE
Referring to legislation can a child under 16 instruct a solicitor?

If not who will act on the child’s behalf?

Answer 18

• Under s.2(4A) of the 1991 Act a person under 16 has right to instruct solicitor in civil proceedings where they have general understanding of what it means to do so
• Where the child does not have capacity to instruct a solicitor then the person exercising parental rights and responsibilities would do so in respect of him per the CSA 1995

Question 19

If a child enters a transaction not covered by exceptions what will occur?

Answer 19

AOLC(S)A 1991, s.2(5) - the transaction will be void.

Question 20

Are children over the age of 16 but under the age of 18 afforded any protection by the AOLC(S)A 1991?

Answer 20

YES

• s.3 protects persons between 16 and 18
• they may have a transaction set aside which is deemed to be a prejudicial transaction

Question 21

Where can the definition of a prejudicial transaction be found?

Answer 21

s.3(2) of the Age of Legal Capacity (S) Act 1991

Question 22

EXAMPLE:

• Johnny buys a car 4 months after his 17th birthday
• It is relatively old model
• The seller advises Johnny that the car is in full working condition
• Johnny accepts the word of the seller and purchases the car for £4000

Consider what Johnny may be able to do if the car two weeks after purchasing suffers engine failure?

Or Johnny is advised by his father after purchasing that the car is only worth around £600.

Answer 22

• Under s.3(1) of the 1991 Act Johnny may apply to the court to have the transaction set aside as a prejudicial transaction
• Under s.3(2)(a) it is argued that an adult exercising reasonable prudence would not have entered the transaction as they would have requested to test drive the car or see a service history as well as valuing the car themselves through research
• Under s.3(2)(b) it has clearly caused substantial prejudice to the 17 year old as he has been ripped off and no without a working car

Question 23

If a competent child refuses treatment can a person with PR&Rs consent to it on their behalf?

Answer 23

Unclear as there is no case law that supports this view.

Question 24

What happened in V v F 1996 and why is this not very helpful?

Answer 24

• Prior to the s.2(4) of 1991 Act
• Case where a 15 year old girl suffering from depression refused treatment
• Sheriff found that the parents did have the right to consent to treatment on behalf of their child
• not helpful as there was no mention if she was “gillick competent”
• or with lack of capacity to consent.

Question 25

What happened in Houston, Applicant 1996?

Answer 25

• Case where Sheriff found mother did not have right to give consent to detention of 15 year old son
• Son was deemed competent under s.2(4) of the 1991 Act and didn’t consent
• Sheriff said in Obiter that the patient was competent and entitled to make decision himself whether to receive treatment
• mother not entitled to overrule.
• Comments made in obiter so not clear if binding on other courts

Question 26

What happened in A v United Kingdom? 1998

Answer 26

• Case where child was viciously beaten by stepfather
• Crown brought charge of serious assault against stepfather
• Not convicted on grounds of ‘reasonable chastisement’
• Taken to the ECHR who held that the UK were in breach of Art. 3 (freedom from torture)
• UK ordered to reform law

Question 27

Do children enjoy the same rights of protection from violence as adults?

Answer 27

NO
- The Criminal Justice (S) Act 2003 provides that children may still be punished by parents if the punishment is justified

Question 28

How is a ‘jusifiable assault’ determined in Scotland?

Answer 28

Criminal Justice (S) Act 2003, s.51(1)
- sets out a list of what the court must have regard to when determining if a parent's action was a justifiable assault

Question 29

If the court are dealing with a case in which guidelines are not set in s.51(1) on justifiable assault what may they do?

Answer 29

s.51(2) - court may still find parent to be in breach of parental rights if the court deems appropriate

Question 30

What must the court always determine is not justifiable assault, unless court deems it to be for whatever reason?

Answer 30

s. 51(3) of the CJ(S)A 2003
- blow to head
- shaking
- use of implement

Question 31

In its current state does Scots law act in line with Article 19(1) of the UN Convention on Rights of the Child?

Answer 31

NO
- Article 9(1) states that children should be protected from ALL FORMS OF VIOLENCE whilst in care of parent or person who cares for child.