Re S (Child as parent: Adoption: Consent)



Judge: Cobb J

Citation: [2017] EWHC 2729 (Fam)

Summary

We briefly mention this decision because it is the first time MCA-concepts and language have been expressly endorsed and adopted when assessing the Gillick competence. In short, S was under 16 and had given birth to a baby by caesarean section under general anaesthetic. The central issues were whether she had the competence to make decisions as to her child being (a) voluntarily accommodated under section 20 of the Children Act 1989 and (b) adopted.

It was not in dispute that, given her age, S’s competence was to be assessed by reference to Gillick. That is, whether she had achieved “a sufficient understanding and intelligence to enable … her to understand fully what is proposed.” Cobb J held that in so doing, “I regard it as appropriate, and indeed helpful, to read across to, and borrow from, the relevant concepts and language of the Mental Capacity Act 2005” (para 15). His Lordship went on to state:

  1. I do so, cognizant of some fundamental differences between the assessment of a child’s competence at common law, and the assessment of capacity of a person over the age of 16 under the MCA 2005. Most notable of the differences is that the assumption of capacity in a person aged 16 or over in section 1(2) of the MCA 2005 does not apply (in relation to the equivalent issue of competence) to a young person under that age. Furthermore, there is no requirement to consider any ‘diagnostic’ characteristic of a young person under 16 (i.e. impairment of, or a disturbance in the functioning of, the mind or brain) in the assessment of their competence, as there is under section 2(1) of the MCA 2005 in respect of those aged 16 and over.
  2. It seems to me, nonetheless, that the following principles relevant to decision-making under the MCA 2005 can usefully be applied to Gillick decisions:
  • The determination of a child’s competence must be decision-specific and child-specific. It is necessary to consider the specific factual context when evaluating competence, for “removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon” (City of York Council v C [2013] EWCA Civ 478; [2014] Fam 10 at [35]);
  • Just because S lacks litigation competence in the placement order proceedings for example does not mean that she lacks subject matter competence (say, in relation to consent): Sheffield City Council v E [2004] EWHC 2808 (Fam) at [23] (“someone can have capacity for one purpose whilst simultaneously lacking capacity for another purpose”);
  • The assessment of competence must be made on the current evidence, and in respect of this current and specific decision, as is the approach under the MCA 2005: see §4.4 Mental Capacity Act Code of Practice (“the Mental Capacity Code”).

 

  1. The approach outlined in [14]-[17] above is advanced by the Local Authority in this case, though not wholeheartedly supported on behalf of S or T. That said, it is agreed by all parties that in order to be satisfied that a child is able to make a Gillick competent decision (i.e. has “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”: see Lord Scarman in Gillick above), the child should be of sufficient intelligence and maturity to:
  • Understand the nature and implications of the decision and the process of implementing that decision;
  • Understand the implications of not pursuing the decision;
  • Retain the information long enough for the decision-making process to take place;
  • Weigh up the information and arrive at a decision;
  • Communicate that decision.
  1. For my part, I consider it helpful to test Gillick competence in the way outlined in [18]. As I have said above, while it is abundantly clear that the MCA 2005 does not apply to those under 16 years of age, there is an advantage in applying relevant MCA 2005 concepts and language to the determination of competence to the under-16s, for this will materially assist in maintaining consistency of judicial approach to the determination of capacity or competence of a parent to give consent to adoption or placement, whether that parent is under or over 16 years of age. The capacity to give consent under the ACA 2002 for the over-16s is specifically to be determined by reference to the MCA 2005: see section 52(1)(a); it would be illogical if the court applied a materially different test of capacity/competence depending on which side of their 16th birthday the parent fell.

His Lordship identified the information relevant to the section 20 accommodation decision (para 62(vi)) and the adoption decision (para 62(vii)) in a most useful, concise summary of his reasoning.

Comment

This is a particularly important judgment for anyone working with those under 18. It very much implements that which is advocated in the MHA Code of Practice, namely the fleshing out of the common law Gillick competence test with the clarity of the MCA, recognising the fundamental differences where appropriate. The concepts embedded in the MCA were very much more fully embraced in this decision than they were by the Court of Appeal in Re D [2017] EWCA Civ 1695. And the greater degree of clarity should assist practitioners.

One potential area of confusion is the distinction drawn “between the competence to make a decision, and the exercise of decision-making” (para 59). At least in MCA-terms, it is the person’s ability to decide that counts rather than the wisdom of their decision. But decision-making ability includes the ability to “use” the relevant information and to communicate the decision. If, by “exercising” decision-making, the court had in mind the need to be provided with all the salient details of the decision so that the decision is an informed one, that would avoid confusion.

CategoryMental capacity - Assessing capacity Date

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