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3 J. Child L. 121 (1990-1991)
Gillick and s.8 of the Family Law Reform Act 1969 - An Historical Note

handle is hein.journals/chilflq3 and id is 135 raw text is: Gillick and s. 8 of the Family Law
Reform Act 1969 - an historical note
MICHAEL BRYAN

Introduction
Every fifteen-year-old knows that the House of Lords
in Gillick v. Norfolk and Wisbech Area Health
Authority' had to decide whether a young person
under 16 could receive contraceptive advice or treat-
ment without the consent of a parent or guardian. The
decision was reached within the framework of s. 8 of
the Family Law Reform Act 1969. The relevant pro-
visions are as follows:
'S. 8(1). The consent of a minor who has attained the
age of sixteen 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.'
The majority of the House of Lords held that it is
lawful for a person under 16 to receive medical advice
and treatment, including advice on contraceptives.
However, divergent judicial approaches have created
some uncertainty as to precisely when the advice
or treatment will be regarded as lawful. What is
apparent from a reading of all the judgments is that
s.8 provided minimal assistance in resolving the issue
before the House. While s. 8(1) empowers sixteen-
year-olds to consent to medical treatment it is silent
on the status of consent given by those under that age.
Section 8(3), which might be thought to throw light on
this very question, in fact deepens the obscurity. Lord
Scarman read the subsection as *clarifying the law
without conveying any indication as to what the law
was before it was enacted'2 and reached his decision in
favour of the legality of DHSS guidelines on consent
by minors without relying on its terms. Some com-
mentators have construed the provision more posi-
tively to permit a young person under 16 to consent
to medical treatment if he or she understands the
decision. Professor Freeman, writing shortly after the
Court of Appeal had declared the DHSS guidelines
unlawful, took this line.3 He asserted that s. 8(3)
meant 'that a younger child capable of understanding
what is involved may also give effective consent.' He
went on, 'If I am right, the Court of Appeal's decision
is per incuriam and can be safely ignored by doctors
who secure the consent of under-age girls.'
Given the gnomic ambiguity of the section, an
analysis of the legislative history might repay study if
THE JOURNAL OF CHILD LAW, SEPTEMBER-DECEMBER 1991

it threw light on what Parliament intended when it
enacted this provision. The following account is pre-
sented purely for its historical interest. The meaning
of s. 8, and the circumstances in which someone under
sixteen can consent to medical treatment, are now to
be determined by reference to the judgments of the
House of Lords in the Gillick case. The casual specu-
lations of Ministers and M.P.s are irrelevant. Never-
theless, it is the thesis of this note that the decision
reached by the majority of the House of Lords
directly contradicted the interpretation placed upon
cl. 8 (as it appeared in the Family Law Reform Bill) by
the majority of M.P.s of all parties when the matter
was debated in the House of Commons. Conse-
quently, although the decision has been welcomed by
most legal, medical and social commentators, the
construction adopted by the majority would not have
been regarded as either correct or desirable by the
legislators who enacted it.
The Parliamentary history
The genesis of s. 8 was a recommendation of the Latey
Committee on the Age of Majority' which, if it had
not foreseen the precise issue in Gillick, had certainly
intended the neutral construction of s. 8(3) adopted
by Lord Scarman in that case. The Family Law
Reform Bill, which inter alia incorporated the pro-
posals of the Latey Committee, was introduced in the
House of Lords on the 31 October 1968 and received
its second reading on 26 November. Baroness
Serota, presenting the Bill for the Labour Govern-
ment, completely omitted any mention of the clause
in an otherwise detailed account of its provisions.
Thereafter, discussion of its terms in the House was
conspicuous by its absence. It seemed initially that a
similar fate would befall the clause in the House of
Commons. The Attorney-General, Sir Elwyn Jones,
devoted four and a half lines to it in opening the
debate on the second reading. Optimistically, he
averred that it would 'clear up confusion about the
ability to consent to medical treatment.'6 It was not
until the Committee stage of the Bill that the clause
received any scrutiny. At that stage, Mr Eldon Grif-
fiths (Con., Bury St. Edmunds) proposed an amend-
ment which would have removed the right to consent
to treatment from a young person over 16 'in the
case of a minor in statu pupillari and resident
during term time for not less than half the year at an
educational establishment. The clear aim of the
amendment was to place on parents the responsibility
for consenting to medical treatment to be performed
on children attending boarding schools.

121

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