January 2021: Competence, Self-Determination and Alienation

There is a principal in law usually called “Gillick Competency”.  It is named for a 1985 case in England where a child under 16 was deemed competent to receive contraception without parental consent.  This principal was strongly upheld by the Australian High Court in a 1992 case known as “Marion’s Case”.

While there is no age specific “bright line” for competency, the Gillick precedent says that if a child has “sufficient understanding and intelligence to enable him or her to fully understand what is proposed” their treatment does not require parental consent.

It is a basic principle of human rights that individuals have a right to “self-determination”.  Article 1 of the International Covenant on Civil and Political Rights states that:  All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

In Australian Family Court situations, when a child is expressing the wish that they do not want to visit a parent, it often leads to accusations of “parental alienation” and sometimes to children being forced to live with a non-preferred parent.   I have long expressed the view that this disrespects the child’s capacity for independent thought, regardless of who is or is not influencing them.

A colleague has come up with the brilliant idea that rather than delve into the murky waters of trying to assign blame and figure out the etiology of a child’s decision, the court could apply the Gillick test.  If a child were deemed competent under Gillick, their right of self-determination would be respected.

Sometimes the greatest ideas seem so simple.   If we know a child is competent to “fully understand what is proposed” and we honour the basic human right of self-determination, the analysis needs to go no deeper. Of course children are greatly influenced by their parents, just as they are influenced by their teachers, their friends, You Tube, etc.   We are ALL influenced by loved ones, friends and media.  But at the end of the day, competent human beings take all the information into account and make their own decisions.   If a child is deemed Gillick competence, the court ought to respect their decision about where they live and with whom they spend their time