“to arrange, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception, the medical examination of persons seeking advice on contraception, the treatment of such persons and the supply of contraceptive substances and appliances.”
“Clinic sessions should be available for people of all ages, but it may be helpful to make separate, less formal arrangements for young people. The staff should be experienced in dealing with young people and their problems.
“There is widespread concern about counselling and treatment for children under 16. Special care is needed not to undermine parental responsibility and family stability. The Department would therefore hope that in any case where a doctor or other professional worker is approached by a person under the age of 16 for advice on these matters, the doctor, or other professional, will always seek to persuade the child to involve the parent or guardian (or other person in loco parentis) at the earliest stage of consultation, and will proceed from the assumption that it would be most unusual to provide advice about contraception without parental consent.
“It is, however, widely accepted that consultations between doctors and patients are confidential, and the Department recognises the importance which doctors and patients attach to this principle. It is a principle which applies also to the other professions concerned. To abandon this principle for children under 16 might cause some not to seek professional advice at all. They could then be exposed to the immediate risks of pregnancy and of sexually-transmitted disease, as well as other long-term physical, psychological and emotional consequences which are equally a threat to stable family life. This would apply particularly to young people whose parents are, for example, unconcerned, entirely unresponsive, or grossly disturbed. Some of these young people are away from their parents and in the care of local authorities or voluntary organisations standing in loco parentis.
“The Department realises that in such exceptional cases the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor.”
“Concerning the new D.H.S.S. guidelines on the contraceptive and abortion treatment of children under both the legal and medical age of consent, without the knowledge or consent of the parents, can I please ask you for a written assurance that in no circumstances whatsoever will any of my daughters (Beatrice, Hannah, Jessie and Sarah) be given contraceptive or abortion treatment whilst they are under 16 in any of the family planning clinics under your control, without my prior knowledge, and irrefutable evidence of my consent? Also, should any of them seek advice in them, can I have your assurance that I would be automatically contacted in the interests of my children's safety and welfare? If you are in any doubt about giving me such assurances, can I please ask you to seek legal medical advice.
“Thank you for your letter of 21 January addressed to the chairman and he has asked me to reply to you on his behalf. I enclose for your information a copy of the official guidance issued in May 1980, together with a copy of a recent press statement made by the Minister of Health on this important matter. You will see that the Minister emphasises that it would be most unusual to provide advice about contraception without parental consent, but it does go on to say that the final decision must be for the doctor's clinical judgment. We would expect our doctors to work within these guidelines but, as the Minister has stated, the final decision in these matters must be one of clinical judgment.”
“I formally FORBID any medical staff employed by Norfolk A.H.A. to give any contraception or abortion advice or treatment whatsoever to my four daughters, while they are under 16 years, without my consent. Will you please acknowledge this letter and agree wholeheartedly to advise your doctors etc. to abide by my forbidding.”
“(i) a declaration against the first defendants and the second defendants on a true construction of the said notice and in the events which have happened, including and in particular the publication and the circulation of the said notice, the said notice has no authority in law and gives advice which is unlawful and wrong, and which adversely affects or which may adversely affect the welfare of the plaintiff's said children, and/or the rights of the plaintiff as parent and custodian of the children, and/or the ability of the plaintiff properly and effectively to discharge her duties as such parent and custodian; (ii) a declaration against the first defendants that no doctor or other professional person employed by the first defendants either in the Family Planning Service or otherwise may given any contraceptive and/or abortion advice and/or treatment to any child of the plaintiff below the age of 16 without the prior knowledge and/or consent of the said child's parent or guardian.”
“(1) The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the 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 for it from his parent or guardian. (2) In this section ‘surgical, medical or dental treatment’ includes any procedure undertaken for the purposes of diagnosis, and this section applies to any procedure (including, in particular, the administration of an anaesthetic) which is ancillary to any treatment as it applies to that treatment. (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.”
“In the case of an infant who has attained the age of 16 years and is capable of expressing his own wishes, any such arrangements as are mentioned in the foregoing subsection may be made, carried out and determined notwithstanding any right of custody or control vested by law in his parent or guardian.”
“(1) In this Act, unless the context otherwise requires, ‘the parental rights and duties’ means as respects a particular child (whether legitimate or not), all the rights and duties which by law the mother and father have in relation to a legitimate child and his property; and references to a parental right or duty shall be construed accordingly and shall include a right of access and any other element included in a right or duty. (2) Subject tosection 1(2) of the Guardianship Act 1973 (which relates to separation agreements between husband and wife), a person cannot surrender or transfer to another any parental right or duty he has as respects a child.”
“86. In this Act, unless the context otherwise requires, ‘legal custody’ means, as respects a child, so much of the parental rights and duties as relate to the person of the child ( including the place and manner in which his time is spent ); but a person shall not by virtue of having legal custody of a child be entitled to effect or arrange for his emigration from the United Kingdom unless he is a parent or guardian of the child.
“87(2) While a person not having legal custody of a child has actual custody of the child he has the like duties in relation to the child as a custodian would have by virtue of his legal custody.” (The emphasis is mine).
“Provided that if the parent of any pupil gives to the authority notice that he objects to the pupil availing himself of any medical treatment provided under this section, the pupil shall not be encouraged … so to do.”
“This operation could, if necessary, be delayed or prevented if the child were to remain a ward of court and, as Lord Eldon L.C. so vividly expressed it in Wellesley's case, 2 Russ. 1, 18:
‘… it has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.’
“In considering this vital matter, I want to make it quite clear that I have well in mind the natural feelings of a parent's heart, and though in wardship proceedings parents' rights can be superseded the court will not do so lightly and only in pursuance of well-known principles laid down over the years. The exercise of the court's jurisdiction is paternal, and it must be exercised judicially, and the judge must act, as far as humanly possible, on the evidence, as a wise parent would act. ” (The emphasis is mine).
“I cannot believe, and the evidence does not warrant the view, that a decision to carry out an operation of this nature performed for non-therapeutic purposes on a minor can be held to be within the doctor's sole clinical judgment.”
“I assume that it is impossible for this local authority to monitor her sexual activities, and, therefore, contraception appears to be the only alternative.”
“Now the cases which have been decided on this subject shew that although a father is entitled to the custody of his children till they attain the age of 21, this court will not grant a habeas corpus to hand a child which is below that age over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide, which we may safely follow, in pointing out 16 as the age up to which the father's right to the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him.”
“the father has the control over the person, education, and conduct of his children until they are 21 years of age. That is the law.”
“Therefore the Lord Chief Justice there most distinctly recognises what, having regard to the Act, I should have thought was beyond dispute, that during infancy and over 16 the right of the father still continues.”
“Now a good deal of this discussion has turned upon the exact limits of parental authority. As far as one can see, some little confusion has been caused by the use in earlier law books of distinctions by which the law now no longer strictly stands. The strict common law gave to the father the guardianship of his children during the age of nurture and until the age of discretion. The limit was fixed at 14 years in the case of a boy, and 16 years in the case of a girl; but beyond this, except in the case of the heir apparent, if one is to take the strict terminology of the older law the father had no actual guardianship except only in the case of the heir apparent, in which case he was guardian by nature till 21. That was what was called guardianship by nature in strict law. But for a great number of years the term ‘guardian by nature’ has not been confined, so far as the father is concerned, to the case of heirs apparent, but has been used on the contrary to denote that sort of guardianship which the ordinary law of nature entrusts to the father till the age of infancy has completely passed and gone.
“I do not desire to elaborate the matter more than is necessary. The history I think of the term ‘natural guardianship’ and of its extension, more especially in Courts of Equity, to the father's natural custody and to the authority which a father has over his child up to the complete age of 21, will be found in Hargreave's note to Coke (Co. Lit. 88b.). There is, therefore, a natural paternal jurisdiction between the age of discretion and the age of 21, which the law will recognise. It has not only been recognised by the common law and by the Court of Chancery but it has also been recognised by statute. The [Tenures Abolition] Act of 12 Car. 2 enables the father by his will to dispose of the custody and tuition of his child or children until they attain the age of 21 years. It seems to me to follow that if a father can dispose of the custody and tuition of his children by will until the age of 21, it must be because the law recognises, to some extent, that he has himself an authority over the children till that age is reached. To neglect the natural jurisdiction of the father over the child until the age of 21 would be really to set aside the whole course and order of nature and it seems to me it would disturb the very foundation of family life.”
“I would get rid of the rule in In re Agar-Ellis, 24 Ch D. 317 and of the suggested exceptions to it. That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unquestioning obedience to his commands. If a son disobeyed, his father would cut him off with a shilling. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21. I decline to accept a view so much out of date. The common law can, and should, keep pace with the times. It should declare, in conformity with the recent Report of the Committee on the Age of Majority [Cmnd. 3342, 1967], that the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”
“In its wider meaning the word ‘custody’ is used as if it were almost the equivalent of ‘guardianship’ in the fullest sense — whether the guardianship is by nature, by nurture, by testamentary disposition, or by order of a court. (I use the words ‘fullest sense’ because guardianship may be limited to give control only over the person or only over the administration of the assets of an infant.) Adapting the convenient phraseology of counsel, such guardianship embraces a ‘bundle of rights,’ or to be more exact, a ‘bundle of powers,’ which continue until a male infant attains 21, or a female infant marries. These include power to control education, the choice of religion, and the administration of the infant's property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the courts to exercise the powers of the Crown as parens patriae. It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, namely, such personal power of physical control as a parent or guardian may have.”
“There is, in my view, nothing in Edge's case, to show that the Irish Supreme Court were of the opinion that there did not exist any common law offence of kidnapping a child under 14. On the contrary, it is implicit in their decision that they considered that such an offence did exist, but that, in order to establish it, the taking or carrying away of such a child would have to be shown to have been without the consent of the child's parent or other lawful guardian, rather than without the consent of the child himself. It will be necessary to consider later whether this distinction, between a child over 14 and one under 14, accords with the English law of kidnapping.”
“In my opinion, to accept that doctrine as applicable under English law would not be consistent with the formulation of the third ingredient of the common law offence of kidnapping which I made earlier on the basis of the wide body of authority to which your Lordships were referred. That third ingredient, as I formulated it earlier, consists of the absence of consent on the part of the person taken or carried away. I see no good reason why, in relation to the kidnapping of a child, it should not in all cases be the absence of the child's consent which is material, whatever its age may be. In the case of a very young child, it would not have the understanding or the intelligence to give its consent, so that absence of consent would be a necessary inference from its age. In the case of an older child, however, it must, I think, be a question of fact for a jury whether the child concerned has sufficient understanding and intelligence to give its consent: if, but only if, the jury considers that a child has these qualities, it must then go on to consider whether it has been proved that the child did not give its consent. While the matter will always be for the jury alone to decide, I should not expect a jury to find at all frequently that a child under 14 had sufficient understanding and intelligence to give its consent. “I should add that, while the absence of the consent of the person having custody or care and control of a child is not material to what I have stated to be the third ingredient of the common law offence of kidnapping, the giving of consent by such a person may be very relevant to the fourth such ingredient, in that, depending on all the circumstances, it might well support a defence of lawful excuse.”
“(2) Where a marriage is invalid under section two of the Marriage Act, 1949, or section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of 16), the invalidity does not make the husband guilty of an offence under this section because he has sexual intercourse with her, if he believes her to be his wife and has reasonable cause for the belief. (3) A man is not guilty of an offence under this section because he has unlawful sexual intercourse with a girl under the age of 16, if he is under the age of 24 and has not previously been charged with a like offence, and he believes her to be of the age of 16 or over and has reasonable cause for the belief. In this subsection, ‘a like offence’ means an offence under this section or an attempt to commit one, or an offence under paragraph (1) of section 5 of the Criminal Law Amendment Act, 1885 (the provision replaced for England and Wales by this section).”
“That the notice issued by the department in December 1980, setting out a revised form of section G of the Memorandum of Guidance issued in May 1974, is contrary to law.”
“(1) Where in any proceeding before any court (whether or not a court within the meaning of the Guardianship of Infants Act, 1886) the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.”
“This statute, however, in my view, has confined itself to questions as between the rights of father and mother which I have already outlined — problems which cannot arise in the case of an illegitimate child, and … it is difficult to see … how it can be said from a consideration of that statute that there has been a development of thought between 1891 and 1926.”
“Then [the father] having a legal right to the custody of his child, and not having abused that right, is entitled to have it restored to him.”
“It has been said that we ought to consider the interest of the ward. Undoubtedly. But this court holds this principle — that when, by birth, a child is subject to a father, it is for the general interest of families, and for the general interest of children, and really for the interest of the particular infant, that the court should not, except in very extreme cases, interfere with the discretion of the father, but leave to him the responsibility of exercising that power which nature has given him by the birth of the child.”
“The father is the head of his house, he must have the control of his family … and this court never does interfere between a father and his children unless there be an abandonment of the parental duty …”
“upon the application of the mother of any infant … make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents …” See per Scrutton L.J. in In re Carroll (An Infant) [1931] 1 K.B. 317, 335.
“(1) The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the 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 for it from his parent or guardian. (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.”
“We repudiate … the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury.”
“Because the court cannot inquire into every particular case the law has now fixed upon certain ages — as to boys the age of 14 and as to girls the age of 16 — up to which, as a general rule, the court will not inquire upon a habeas corpus … as to the consent of the child to the place wherever it may be.”
“Major decisions” extend to and include a decision as to contraceptive treatment. A doctor has no right or power or discretion to make his own independent decision as to contraceptive treatment whatever the wishes of the female child in question. His duty is to advise and assist the parent, or person in loco parentis, or the court, in carrying out that party's duty to care for the child in question. Should he discover on full and proper inquiry that the child in question is entirely free from parental control and that there is no one in loco parentis, his duty is to recognise the fact that the child is in moral danger and to report the matter to those best qualified to deal with such a situation, namely, the social services. The correspondence with the area health authority indicates an assertion by them of a right in its doctors and other servants and agents to ignore and invade the parental responsibility and control and is therefore unlawful and in breach of the legal right implied in that responsibility. Consequently the plaintiff is entitled to the second declaration. The area health authority based its attitude on its interpretation of the guidelines. The interpretation which has been contended for is that a doctor in his sole clinical judgment may in any case override and supersede the wishes of a parent and may provide contraceptive treatment irrespective of the parents' wishes. If and in so far as that is a correct or possible interpretation of the guidance, the advice it provides is contrary to law.
“Clinic sessions should be available for people of all ages, but it may be helpful to make separate, less formal arrangements for young people. The staff should be experienced in dealing with young people and their problems.
“There is widespread concern about counselling and treatment for children under 16. Special care is needed not to undermine parental responsibility and family stability. The department would therefore hope that in any case where a doctor or other professional worker is approached by a person under the age of 16 for advice in these matters, the doctor, or other professional, will always seek to persuade the child to involve the parent or guardian (or other person in loco parentis) at the earliest stage of consultation, and will proceed from the assumption that it would be most unusual to provide advice about contraception without parental consent.
“It is, however, widely accepted that consultations between doctors and patients are confidential; and the department recognises the importance which doctors and patients attach to this principle. It is a principle which applies also to the other professions concerned. To abandon this principle for children under 16 might cause some not to seek professional advice at all. They could then be exposed to the immediate risks of pregnancy and of sexually-transmitted diseases, as well as other long-term physical, psychological and emotional consequences which are equally a threat to stable family life. This would apply particularly to young people whose parents are, for example, unconcerned, entirely unresponsive, or grossly disturbed. Some of these young people are away from their parents and in the care of local authorities or voluntary organisations standing in loco parentis.
“The department realises that in such exceptional cases the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor.”
“I formally forbid any medical staff employed by Norfolk A.H.A. to give any contraceptive or abortion advice or treatment whatsoever to my four daughters whilst they are under 16 years without my consent.”
“(i) A declaration against the [area health authority] and the [D.H.S.S.] that on a true construction of the said notice and in the events which have happened, including and in particular the publication and the circulation of the said notice, the said notice has no authority in law and gives advice which is unlawful and wrong, and which adversely affects or which may adversely affect the welfare of the plaintiff's said children, and/or the rights of the plaintiff as parent and custodian of the said children, and/or the ability of the plaintiff properly and effectively to discharge her duties as such parent and custodian; (ii) a declaration against the [area health authority] that no doctor or other professional person employed by the [area health authority] either in the Family Planning Service or otherwise may give any contraceptive and/or abortion advice and/or treatment to any child of the plaintiff below the age of 16 without the prior knowledge and consent of the said child's parent or guardian.”
“to arrange, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception, the medical examination of persons seeking advice on contraception, the treatment of such persons and the supply of contraceptive substances and appliances.”
“(1) The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the 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 for it from his parent or guardian. (2) In this section ‘surgical, medical or dental treatment’ includes … (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.”
“An application to a doctor for inclusion on his list … may be made, either — ( a ) on behalf of any person under 16 years of age, by the mother, or in her absence, the father, or in the absence of both parents the guardian or other adult person who has the care of the child; or ( b ) on behalf of any other person who is incapable of making such an application by a relative or other adult person who has the care of such person; …” (Emphasis added).
“In the case of a minor who has attained the age of 16 years and is capable of expressing his own wishes, any such arrangements as are mentioned in subsection (1) above [for informal admission] may be made, carried out and determined notwithstanding any right of custody or control vested by law in his parent or guardian.”
“Provided that if the parent of any pupil gives to the authority notice that he objects to the pupil availing himself of any medical treatment provided under this section, the pupil shall not be encouraged … so to do.”
“in the case of a girl under 16, the prosecution, in order to prove rape, must prove either that she physically resisted, or if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist …. there are many girls under 16 who know full well what it is all about and can properly consent.”
“such as shall take away maidens that be inheritors, being within the age of 16 years, or that marry them without consent of their parents.”
“Where in any proceedings before any court … ( a ) the custody or upbringing of a minor; … is in question, the court, in deciding that question, shall regard the welfare of the minor as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.”
“In this Act, unless the context otherwise requires, ‘legal custody’ means, as respects a child, so much of the parental rights and duties as relate to the person of the child (including the place and manner in which his time is spent); …”
“Indeed there must, it seems to me, be such a right from birth to a fixed age unless whenever, short of majority, a question arises it must be determined, in relation to a particular child and a particular matter, whether he or she is of sufficient understanding to make a responsible and reasonable decision. This alternative appears to me singularly unattractive and impracticable, particularly in the context of medical treatment.”
“In the case of a very young child, it would not have the understanding or the intelligence to give its consent, so that absence of consent would be a necessary inference from its age. In the case of an older child, however, it must, I think, be a question of fact for a jury whether the child concerned has sufficient understanding and intelligence to give its consent; if, but only if, the jury considers that a child has these qualities, it must then go on to consider whether it has been proved that the child did not give its consent. While the matter will always be for the jury alone to decide, I should not expect a jury to find at all frequently that a child under 14 had sufficient understanding and intelligence to give its consent.”
“We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide, which we may safely follow, in pointing out 16 as the age up to which the father's right to the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him.”
“I would get rid of the rule in In re Agar-Ellis and of the suggested exceptions to it. That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unquestioning obedience to his commands. If a son disobeyed, his father would cut him off with a shilling. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21. I decline to accept a view so much out of date. The common law can, and should, keep pace with the times. It should declare, in conformity with the recent Report of the Committee on the Age of Majority [Cmnd. 3342, 1967], that the legal right of a parent to the custody of a child ends at the 18th birtiday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”
“upon the application of the mother of any infant [whether over 16 or not] make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents …” (Emphasis added).
“I assume that it is impossible for this local authority to monitor her sexual activities, and, therefore, contraception appears to be the only alternative.”
“It appears to me that it is wholly incongruous, when the act of intercourse is criminal, when permitting it to take place on one's premises is criminal and when, if the girl were under 13, failing to report an act of intercourse to the police would up to 1967 have been criminal, that either the department [or] the area health authority should provide facilities which will enable girls under 16 the more readily to commit such acts. It seems to me equally incongruous to assert that doctors have the right to accept the young, down, apparently, to any age, as patients, and to provide them with contraceptive advice and treatment without reference to their parents and even against their known wishes.”
“(i) parental rights should be protected from any invasion or interference neither authorised by a competent court nor expressly authorised by statute: [the parental rights case]
“(ii) the provision of contraceptive treatment to girls under the age of 16 either constitutes criminal conduct in itself or is so closely analogous thereto as to be contrary to public policy: [the criminal law case]
“(iii) a girl below the age of 16 is not capable in law of giving a valid consent to medical treatment and in the particular context of this case to contraceptive or abortion treatment:” [the age of consent point].
“Now that those disadvantages [i.e. those previously associated with prerogative order procedure] to applicants have been removed and all remedies for infringements of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of order 53 for the protection of such authorities.” [Emphasis supplied.]
“where the invalidity of [the public authority's] decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law, or where none of the parties objects to the adoption of the procedure by writ or originating summons.”
“Clinic sessions should be available for people of all ages, but it may be helpful to make separate, less formal arrangements for young people. The staff should be experienced in dealing with young people and their problems.
“There is widespread concern about counselling and treatment for children under 16. Special care is needed not to undermine parental responsibility and family stability. The department would therefore hope that in any case where a doctor or other professional worker is approached by a person under the age of 16 for advice in these matters, the doctor, or other professional, will always seek to persuade the child to involve the parent or guardian (or other person in loco parentis) at the earliest stage of consultation, and will proceed from the assumption that it would be most unusual to provide advice about contraception without parental consent.
“It is, however, widely accepted that consultations between doctors and patients are confidential; and the department recognises the importance which doctors and patients attach to this principle. It is a principle which applies also to the other professions concerned. To abandon this principle for children under 16 might cause some not to seek professional advice at all. They could then be exposed to the immediate risks of pregnancy and of sexually-transmitted diseases, as well as other long-term physical, psychological and emotional consequences which are equally a threat to stable family life. This would apply particularly to young people whose parents are, for example, unconcerned, entirely unresponsive, or grossly disturbed. Some of these young people are away from their parents and in the care of local authorities or voluntary organisations standing in loco parentis.
“The department realises that in such exceptional cases the nature of any counselling must be a matter for the doctor or other professional worker concerned and that the decision whether or not to prescribe contraception must be for the clinical judgment of a doctor.”
“Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted.”
“All law ought to stand upon principle; and unless decision has removed out of the way all argument and all principle, so as to make it impossible to apply them to the case before you, you must find out what is the principle upon which it must be decided.” 1 Bligh 486, quoted by Lord Campbell, Lives of the Lord Chancellors, 4th ed. (1857), vol. 10, ch. 213, p. 244.
“I would get rid of the rule in In re Agar-Ellis, 24 Ch D. 317 and of the suggested exceptions to it. That case was decided in the year 1883. It reflects the attitude of a Victorian parent towards his children. He expected unquestioning obedience to his commands. If a son disobeyed, his father would cut him off with a shilling. If a daughter had an illegitimate child, he would turn her out of the house. His power only ceased when the child became 21. I decline to accept a view so much out of date. The common law can, and should, keep pace with the times. It should declare, in conformity with the recent Report of the Committee on the Age of Majority [Cmnd. 3342, 1967], that the legal right of a parent to the custody of a child ends at the 18th birthday: and even up till then, it is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice.”
“Now the cases which have been decided on this subject shew that, although a father is entitled to the custody of his children till they attain the age of 21, this court will not grant a habeas corpus to hand a child which is below that age over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is, what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide, which we may safely follow, in pointing out 16 as the age up to which the father's right to the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him.”
“This is because in those times both the generally accepted conventions of society, and the courts by which such conventions were buttressed and enforced, regarded a father as having absolute and paramount authority, as against all the world, over any children of his who were still under the age of majority (then 21), except for a married daughter. The nature of this view of a father's rights appears clearly from various reported cases, including, as a typical example, In re Agar-Ellis(1883) 24 Ch D 317 . The common law, however, while generally immutable in its principles, unless different principles are laid down by statute, is not immutable in the way in which it adapts, develops and applies those principles in a radically changing world and against the background of radically changed social conventions and conditions.”
“I see no good reason why, in relation to the kidnapping of a child, it should not in all cases be the absence of the child's consent which is material, whatever its age may be. In the case of a very young child, it would not have the understanding or the intelligence to give its consent, so that absence of consent would be a necessary inference from its age. In the case of an older child, however, it must, I think, be a question of fact for a jury whether the child concerned has sufficient understanding and intelligence to give its consent; if, but only if, the jury considers that a child has these qualities, it must then go on to consider whether it has been proved that the child did not give its consent. While the matter will always be for the jury alone to decide, I should not expect a jury to find at all frequently that a child under 14 had sufficient understanding and intelligence to give its consent.”
“But, regardless of modern trend, I can find nothing in any of the old reported cases, except where infants of tender age or young children were involved, where the courts have found that a person under 21 years of age was legally incapable of consenting to medical treatment. If a person under 21 years were unable to consent to medical treatment, he would also be incapable of consenting to other types of bodily interference. A proposition purporting to establish that any bodily interference acquiesced in by a youth of 20 years would nevertheless constitute an assault would be absurd. If such were the case, sexual intercourse with a girl under 21 years would constitute rape. Until the minimum age of consent to sexual acts was fixed at 14 years by a statute, the courts often held that infants were capable of consenting at a considerably earlier age than 14 years.
“I feel that the law on this point is well expressed in the volume on Medical Negligence (1957), by Lord Nathan, p. 176: ‘It is suggested that the most satisfactory solution of the problem is to rule that an infant who is capable of appreciating fully the nature and consequences of a particular operation or of particular treatment can give an effective consent thereto, and in such cases the consent of the guardian is unnecessary; but that where the infant is without that capacity, any apparent consent by him or her will be a nullity the sole right to consent being vested in the guardian.’”
“4. Any person who — unlawfully and carnally knows any girl under the age of 13 years shall be guilty of felony, and being convicted thereof shall be liable at the discretion of the court to be kept in penal servitude for life, or for any term not less than five years, or to be imprisoned for any term not exceeding two years, with or without hard labour …. 5. Any person who — (1) unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of 13 years and under the age of 16 years; … shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour ….”
“5. It is a felony for a man to have unlawful sexual intercourse with a girl under the age of 13. 6. (1) It is an offence … for a man to have unlawful sexual intercourse with a girl not under the age of 13 but under the age of 16.”
“It is the Secretary of State's duty — … ( b ) to arrange, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception, the medical examination of persons seeking advice on contraception, the treatment of such persons and the supply of contraceptive substances and appliances.”
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