Court of Appeal confirms Gillick competence is limited to medical consent

The recent Court of Appeal decision in Re S (Wardship: Removal to Ghana) provides important clarification on the concept of Gillick competence.

In this case, a 14-year-old boy contested his parents’ decision to keep him in Ghana against his wishes. The Court’s judgment makes clear that Gillick competence is strictly a test for whether a child under 16 can consent to medical treatment, and not a universal yardstick for all decisions involving children. This clarification has significant implications for legal and health professionals – especially those working with young people in non-medical decision-making contexts.

Gillick competence: A narrow test (not a universal rule)

In the course of its judgment, the Court of Appeal addressed the role of S’s views and the concept of “Gillick competence”. S was described as Gillick competent – meaning a child under 16 has sufficient understanding and intelligence to make decisions – but the Court clarified what legal effect (if any) that has outside the medical context.

The term Gillick competence comes from a well known House of Lords case (Gillick v West Norfolk & Wisbech AHA ) concerning the ability of children (under the age of 16) to consent to medical treatment. In practice, Gillick competent children can give valid consent to medical treatment without parental involvement, provided they fully understand the proposed intervention. Over the years however, professionals have often used Gillick competence more broadly – as shorthand for a child who’s mature enough to make any significant decision. This has led to confusion about whether a child’s competence could extend to decisions about their welfare or living arrangements.

The Court of Appeal in Re S has now drawn a firm line: the Gillick test strictly only applies to determining whether a child (under the age of 16) has the capacity to give or withhold valid consent to medical treatment. In other contexts – such as S’s situation, which was about his living arrangements and welfare – declaring a child Gillick competent is legally insignificant. It doesn’t grant the child autonomous decision-making power over non-medical matters.

Sir Andrew McFarlane noted that calling S Gillick competent in this welfare case was “no more, nor no less, than a convenient label to indicate that S has sufficient maturity and understanding to form his own view as to where he may live”. The label described his level of understanding but conferred no special legal status in the court’s welfare determination. The court must still apply the welfare checklist under the Children Act 1989 – taking the child’s wishes into account in light of their age and understanding.

Notably, the Court of Appeal rejected an argument that once a child is deemed Gillick competent, their wishes can only be overridden for “clear and compelling” reasons. There is no such elevated threshold. A competent child’s views are one important factor in the overall welfare analysis, but they don’t trump the court’s duty to consider all relevant factors and make a decision in the child’s best interests. Even in medical treatment cases, a Gillick competent child’s decision can be overridden by a court if necessary for the child’s welfare. 

Implications for Court of Protection work

For professionals working with people under 16, especially in decisions about living arrangements or care, Re S underscores the importance of using the correct legal framework. Practitioners must distinguish between the Gillick test and the Mental Capacity Act 2005 (MCA) framework, and understand when each applies:

Under 16 – Children Act welfare framework (not Gillick, unless medical consent)

For children and teenagers under 16 years old, there's no general statute for assessing decision-making capacity in welfare matters. Outside of medical treatment scenarios, Gillick competence has no legal force for decisions such as where a child lives or what care they receive. Such decisions fall under the Children Act 1989 or the court’s inherent jurisdiction (wardship). The child’s wishes and feelings should be heard and given appropriate weight according to their maturity, but the decision is ultimately one for those with parental responsibility or the court, guided by the child’s best interests.

A 15-year-old might be extremely mature, but if there is a dispute about their foster placement, there is no capacity test to let the child decide. Instead, professionals and courts will consider the child’s view as part of the welfare checklist, without treating it as determinative. Re S makes clear that one cannot rely on Gillick competence to argue a child of 14 or 15 has an absolute right to dictate their own welfare outcomes.

Ages 16–17 – Mental Capacity Act 2005 applies (if capacity is in question)

Once a young person turns 16 years of age, the MCA legal framework applies for decision-making. The MCA provides that people aged 16 and over are presumed to have capacity, and it sets out a structured test for capacity where there is reason to question it. Importantly, the MCA only comes into play if the young person is (1) unable to understand, or retain, or use and weigh up relevant information and/or communicate their decision (ie the functional test) and that this is because of (2) an impairment of or disturbance in mind or brain affecting their decision-making, as confirmed in A Local Authority v JB. Once a young person turns 16 years of age, Gillick competence has no relevance, even to medical treatment.

If a 16-17-year-old has capacity under the MCA framework, they can make their own decisions about residence or care (subject to specific legal exceptions and the fact that parental responsibility technically continues until 18 years of age).

If they lack capacity, then the Court of Protection can make a decision in their best interests under the MCA framework. The MCA assessment is different from Gillick: it's a functional test tied to a condition or impairment, not a broad judgment of maturity. 

Unlike Gillick, which only deals with consent to treatment, the MCA can cover personal welfare decisions, living arrangements, and finances for those 16 years of age and over.

Practical considerations

If obtaining consent for treatment from an under-16-year-old, the child’s Gillick competence should be assessed (ie can the child understand the treatment and its risks/benefits?). However, if the issue is where an under-16-year-old shall live, or what care arrangements are or should be in place, Gillick competence is not the test to be applied. The decision is for those with parental responsibility and potentially the courts under the Children Act 1989 if there's a dispute. When a young person’s welfare is before a court, the child’s best interests remain the paramount consideration, regardless of parental preferences or the child’s perceived maturity.

For 16–17-year-olds, the MCA framework applies: consider if a capacity assessment is indicated for the specific decision(s) and whether the Court of Protection’s involvement to authorise a decision in the young person’s best interests is required.