W(h)ither adolescent autonomy?

Abstract

In this article, consideration is given to the extent to which minors are empowered under statute, and at common law to determine for themselves matters concerning medical treatment. It is argued that, while there was no clear ratio, the Gillick case nevertheless established an absolute right of self-determination on behalf of the intellectually mature minor where that child is in dispute with his or her parents. In the context of the child in dispute with the courts the extent to which the inherent jurisdiction may be invoked to override the child's wishes is also discussed. The point is made that while there are no theoretical limitations on the court's powers under this jurisdiction, there are nevertheless statutory constraints upon the situations in which it may be invoked and to what ends. It is further argued that several restrictions of principle should also operate to ensure that it is exercised as a means of protection (thus reflecting its parens patriae aspect) and not as a medium of interventionism.

The above considerations are set against the backcloth of two recent decisions of the Court of Appeal in which questionable assertions concerning the balance of power between children and their parents, and children and the State were offered. It is contended that those assertions display a thinly veiled paternalism on the part of the courts which, the author concludes, may not be without serious consequences for the cause of adolescent autonomy.