Legal Definitions in respect of Parental Responsibility & Gillick Competency

Legal Definition of parental responsibility:

As per S3(1) of the Children Act 1989, parental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

Such rights and responsibilities include the following:

• Right to consent to medical treatment on behalf of the child and the disclosure of information held by healthcare professionals about the child.
• Right to apply for access to their children's health records, unless the child is capable of consenting.
• Responsibility to care for the child until he/she achieves the age of majority. This includes providing a home for the child and protecting and maintaining the child.

In addition, parental responsibility also includes:

• Disciplining the child.
• Choosing and providing for the child's education.
• Naming the child and agreeing to any change of name.
• Looking after the child's property.

Parents have to ensure that their child is supported financially, whether they have parental responsibility or not.

These rights exist in order to allow those with parental responsibility to exercise their duty of care towards their child. This is a dynamic process, and as the child becomes competent to make more decisions for him or herself, the extent of the parents' rights to act on the child's behalf diminishes.

It is good practice to involve a child in his/her care and treatment decisions, irrespective of their ability to consent. If the child is capable of giving consent, they have a right to be consulted and to make their own decisions about their care. Capacity is decision-specific, so a child may be competent to decide certain aspects of their care but not others. In England, once a young person reaches 18, that person is regarded in law as an adult and parental responsibility no longer applies.

Persons with Parental Responsibility?

(a) The Mother – always (unless a Court Order says otherwise)

(b) The Father - if married to the mother at the time of the child’s birth and is the biological father of the child.

NB – Neither parent subsequently loses parental responsibility if they divorce.

(c) Other people may claim to have parental responsibility, but you may need to see proof by way of a Court Order or formal Agreement.

Unmarried Fathers

A key difficulty often relates to unmarried fathers. 

Pre 1 December 2003

Fathers not married to the mother have parental responsibility if they have a Residence Order, a Court Order giving them parental responsibility or a formal Parental Responsibility Agreement with the Mother which has been sanctioned by the Court.

Post 1 December 2003

The law changed on 1 December 2003 to make it easier for unmarried fathers to get equal parental responsibility. From this date an unmarried father will obtain parental responsibility if both parents register the birth together and the father’s name appears on the birth certificate. Whilst it is impossible to know if the parents did indeed register the birth together, asking for and receiving a copy of the birth certificate with the Father's name on it is considered to be sufficient evidence of parental responsibility in this regard.

Same-sex parents

Same-sex partners who were civil partners at the time of the treatment will both have parental responsibility.

For same-sex partners who aren't civil partners, the second parent can get parental responsibility by either:

• Applying for parental responsibility if a parental agreement was made.
• Becoming a civil partner of the other parent and making a parental responsibility agreement or
• Jointly registering the birth.

Sharing parental responsibility with a Local Authority when the child is in voluntary/compulsory care

• If the child is accommodated by a Local Authority under voluntary measures, the parent retains full parental rights.
• If the child is subject to a compulsory supervision order or an order of the court, the parent retains full parental rights, although these may be limited by the court.
• If the Local Authority acts in loco parentis for the child in care, they (the Local Authority) have parental responsibility and the parents have no parental responsibility.

IVF Treatment

• For married couples or heterosexual couples in steady relationships, the man producing the sperm and the woman delivering the baby will usually be considered as legal father and mother and have the parental responsibilities that this implies.
• When donor sperm is used the donor is, by definition, never the legal father of the child even if the donor is a "known" donor to the woman being treated.

Gillick competency and Fraser guidelines: Children under the Age of 16

When deciding whether a child under the age of 16 is mature enough to make decisions, 'Gillick competency' and 'Fraser guidelines' are often discussed.

Gillick competency and Fraser guidelines refer specifically to a legal case which looked at whether doctors should be able to give contraceptive advice or treatment to under 16-year-olds without parental consent. Subsequently, they have been used to help assess whether a child has sufficient maturity to take their own decisions and understand the implications of such decisions?

How is Gillick Competency Assessed?

Lord Scarman's comments in his judgement of the Gillick case are referred to as the test of Gillick competency. He indicated:

"…it is not enough that [the child] should understand the nature of the advice which is being given: [they] must also have a sufficient maturity to understand what is involved."

Good Practice Guidelines also recommend considering the child's:

• Ability to understand that there is a choice and that choices have consequences;
• Willingness and ability to make a choice;
• Understanding of the nature of the proposed treatment;
• Understanding of the proposed treatment's risks and effects;
• Understanding of the alternatives, including no treatment;
• Freedom from pressure.

Specifically in relation to children under 16, it is still best practice to secure family involvement in the decision making process. However, clinicians must respect any request from a child under the age of 16 to keep their treatment confidential, unless disclosure can be justified on the grounds that you have reasonable cause to suspect that the child is suffering or is likely to suffer significant harm.

However the issues around Gillick competency epitomises the difficulties that healthcare professionals face when trying to balance the child's rights to consent or refuse treatment against the duty of child protection, and also duties to those with parental responsibility for the child.