ABSTRACT
The explicit promotion of the principle of the paramountcy of the child’s welfare has been the outstanding achievement of the English common law over the last decade, a principle which, although statutorily introduced since 1925 in the guardianship of minors legislation, has received judicial approval and endorsement fairly consistently even before the enactment of the CA 1989 in October 1991. The principle of ‘Gillick competence’ is arguably the groundbreaking concept of the mid 1980s and 1990s although the case law, dealing mostly with children suffering from psychotic illness of some description, could be said to represent a ‘retreat from Gillick’ in that courts have opted to override a parental refusal or a refusal of treatment by the child where to abide by the refusal would be life threatening to the child concerned. There is certainly ample evidence of judicial paternalism, but not much evidence of explicit judicial recognition of a mature child’s right of self-determination or autonomy, unlike, for instance the Scottish position in Houston, Applicant [1997] Med LR 237, where the court was prepared to respect the 15 year old’s wishes. Ultimately, however, in cases where there were life threatening consequences for the minors involved, the English courts have preferred, as they see it, to err on the side of caution and opt for the preservation of the child’s life.
