Children's Capacity and Children's Rights (Scotland)

Children can have passive capacity, the capacity to benefit from certain factors but no capacity to act e.g. not to be involved in transactions
Classification of Children and Young People
1. Old law: pupil children and minor children; pupil children were girls under 12 and boys under 14, minor children were those no longer pupils but under the age of majority (that being 21 at the time, now 18)
  1. Current Law: child until you become an adult at 18 (s.1 Age of Majority (Scotland) Act 1969) BUT
    1. Capacity of Children - Age of 16
      1. sixteen is a key age in Scotland
        Age of Legal Capacity Act 1991 s.1(1)
        (a) a person under the age of 16 years shall, subject to s.2, have no legal capacity to enter into any transaction
        (b) a person of or over the age of 16 years shall have legal capacity to enter into any transaction
        Exceptions to the Rule
        <16 shall have capacity to enter into a transaction if...
        2(1) a kind commonly entered into by persons of his age and circumstance and not unreasonable
        2(2) person of 12 years has TESTAMENTARY capacity
        2(3) person of 12 years has capacity to consent to own adoption (and partial veto)
        2(4) person <16 has capacity to consent to their own "surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment" - see also 2(4ZA) and 2(4ZB)
        2(4A) person <16 has capacity to instruct solicitor in CIVIL proceedings where they have a general understanding of what it means to do so; presumption such understanding at s.12
        OTHERWISE 2(5) transaction is VOID
Children's Capacity and the Relationship with PR&R's
1. PR&R's ONLY SO FAR AS is practicable and in the interests of the child
  1. CSA 1995 s.15(5) any reference in this part to a person acting as a child's legal representative of a child is a reference to that person, in the interests of the child (b) acting in, or giving consent to, any transaction where child is incapable of so acting or consenting on his own behalf
Specific Issue Orders
1. CSA 1995 s.11
  1. (1) ... an order may be made under this subsection in relation to (a)/(b) PR&R's respectively
    1. (2) court may make such an order as it thinks fit; and in particular ... (e) an order regulating any specific question which has arisen in connection with any of the matters mentioned in ss.(1)(a) to (d) (any such order being known as a SIO
      1. (f) an interdict prohibiting the taking of any step of a king specified in the interdict in the fulfilment and/or exercise of PR&R's
Scots Law Cases
1. Docherty v McGlynn 1983 SLT 645
  1. mother of a girl died when the child was 4 or 5 years old, man and woman were married but the woman moved out to live with her boyfriend while remaining married to the man. Who was the father? child was born around 9 months after she had left the husband. Both men wanted to look after the child. Boyfriend had lived with the girl for the first years of her life.
  2. Presumed that the husband of the birth mother will be the father of a child. Question was who had the legal capacity to order a blood test to determine the father of the child. Raised an action of bastardy, to publicly call the child born out of wedlock.
  3. Court recognised that in the past they would have been reluctant to allow a blood test that may show a DESIRED result, allowed the test because there was a belief that this was in the best interests of the child to know who her father was because she had already been labelled a bastard. Shows the role of the court in a DISPUTE
2. V v F 1991 SCLR 225/Houston, Applicant 1996 SCLR 943
  1. medical cases concerning consent, both cases involved children, each of around 15 years old, questions arose around mental health. Do competent children have the right to refuse treatment?
    1. Doctors argued that these children were refusing treatment, but in both cases the mothers were willing to give consent despite their children's wishes
      1. in V v F there was a treatment of psychoactive drugs to treat mental health, is forcing people to take serious medication with serious side effects ethical? i.e. should the state impose an order such as this lightly?
        Patients often frightened of drugs such as these. If you are an adult there is no legislation to provide compulsory treatment, but patient was not an adult in this case and the mother was willing to give consent
        Judge held there would be no issue in favour of the child, no order issued and discretion was as to the hospital i.e. they have consent from the parent and therefore should continue with treatment
      2. In Houston a better approach was taken, judge stated that leaving aside the question of mental health the child was to be considered to understand the situation and that if this was the opinion of the doctor then that young person has capacity

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Children's Capacity and Children's Rights (Scotland)

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