The Balance of Power in Family Decisions

Abstract

The Decision of the House of Lords in Gillick v. West Norfolk and Wisbech Area Health Authority raises fundamental questions concerning the nature of the legal relationship between parents and children and the role of the State in regulating decision-making within the family. Public attention has been focused on the issue of the provision of contraceptives to girls under the age of sixteen years, yet the decision has implications which go well beyond this specific matter. First, the decision invites a re-examination of the approach of English law to the concept of parental rights. Secondly, Lord Scarman's reference to “the child's right to make his own decisions” suggests that it may not be long before a coherent concept of children's rights is incorporated into the law. This would constitute a significant development since although the welfare of children is considered paramount in legal disputes concerning their custody or upbringing, references to the “rights” of children either in statute or case law are comparatively rare. On the occasions when the judiciary recognise that children have rights it is considered a matter of some note.