39.4 Consent in Children and Young People

5. Consent in Children, Young People & Minors

Under UK healthcare law, legal competence to consent to dental treatment varies according to the child's developmental age, jurisdiction, and cognitive understanding.

Age of Majority Across UK Jurisdictions

• England, Wales, and Northern Ireland: The legal age of majority is 18 years (Family Law Reform Act 1969).
• Scotland: The legal age of full legal capacity is 16 years under the Age of Legal Capacity (Scotland) Act 1991.

Young People Aged 16 and 17 Years

Under Section 8 of the Family Law Reform Act 1969, young people aged 16 and 17 are legally presumed to have capacity to consent to their own surgical, medical, and dental treatments. Their valid consent cannot be overridden by parents. However, unlike competent adults, if a 16- or 17-year-old refuses life-saving or essential treatment, that refusal can historically be overridden by a person with Parental Responsibility or the High Court under inherent jurisdiction (Re W [1992]).

Minors Under 16 Years: Gillick Competence

In the historic House of Lords case Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, the court established that parental authority diminishes as the child matures.

$\mathbf{The\ Gillick\ Principle}: \text{A child under 16 has legal competence to consent to medical or dental treatment}$ $\text{if they possess sufficient understanding and intelligence to enable them to understand fully what is proposed.}$

Gillick Competence Assessment Framework in Dental Practice
  │
  ├── Does the child understand the nature and purpose of the dental procedure?
  ├── Does the child grasp the biological benefits and foreseeable clinical complications?
  ├── Does the child understand the alternative options, including no treatment?
  └── Does the child comprehend the long-term consequences of their decision?
        │
        ├── YES ──> Child is Gillick Competent (Can consent independently without parental involvement)
        └── NO ───> Child is Not Gillick Competent (Consent must be obtained from an adult with Parental Responsibility)

[!NOTE] Gillick Competence vs. Fraser Guidelines: Clinicians frequently conflate these two legal terms. Gillick competence applies universally to consent for all medical and dental interventions in children under 16. The Fraser guidelines (named after Lord Fraser in the same judgment) apply specifically and exclusively to medical advice and treatment concerning contraception, sexual health, and termination of pregnancy without parental knowledge.

Parental Responsibility (PR)

If a child under 16 lacks Gillick competence, consent must be obtained from an individual holding legal Parental Responsibility (PR), defined under Section 3 of the Children Act 1989.

Parental Responsibility (PR) Legal Determination (England & Wales)
  │
  ├── Biological Mother ──> Automatically possesses PR from birth
  │
  ├── Father
  │     ├── Married to mother at time of child's birth ──> Automatically acquires PR
  │     ├── Marries mother subsequent to child's birth ───> Automatically acquires PR
  │     └── Unmarried Father:
  │           ├── Registered on birth certificate ON or AFTER 1 December 2003 ──> Acquires PR
  │           ├── Registered on birth certificate BEFORE 1 December 2003 ──────> NO automatic PR
  │           ├── Enters into formal Parental Responsibility Agreement with mother ─> Acquires PR
  │           └── Obtains a Parental Responsibility Order from Court ────────────> Acquires PR
  │
  ├── Same-Sex Female Partners
  │     └── Civil partners/married at time of donor insemination (Human Fertilisation & Embryology Act 2008)
  │
  └── Other Legal Guardians / Local Authority
        ├── Court-appointed legal guardian (upon death of parents)
        ├── Local Authority under a formal Care Order (Sections 31/33 Children Act 1989)
        └── Special Guardians under a Special Guardianship Order

• Individuals who do NOT possess PR (unless granted by court): Grandparents, step-parents, older adult siblings, aunts/uncles, foster carers, and childminders do not have Parental Responsibility. If a grandmother brings a non-Gillick competent 6-year-old for dental treatment requiring local anesthesia or extractions, she cannot provide legal consent unless holding delegated written authorization from a parent with PR.
• Disputes Between Parents with PR: For routine dental care (examinations, restorations, scaling), consent from one parent with PR is legally sufficient. However, for major, irreversible, or elective procedures (e.g., general anesthesia extractions, elective orthodontic extractions), if parents with PR disagree, treatment must be paused until agreement is reached or resolved by the court via a Specific Issue Order.

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Refusal, Not Just Consent

The asymmetry between consent and refusal is the most examinable feature of paediatric consent law. A competent young person aged 16 or 17, and a Gillick-competent child under 16, can give valid consent to treatment. Their refusal, however, can in England and Wales be overridden by a person with parental responsibility or by the court where the treatment is in the child's best interests, particularly where the consequences of refusal are grave. In Scotland, under the Age of Legal Capacity (Scotland) Act 1991, a competent child's decision carries greater weight and the position on overriding refusal is more restrictive. In practice, overriding a competent young person's refusal of dental treatment is almost never justified, and coercion would be a fitness to practise matter; the expected answer is to explore the refusal, address the fear or concern behind it, and involve the family and, if necessary, specialist services.

Who Holds Parental Responsibility

Getting this wrong is a recognised source of complaint. The mother has parental responsibility automatically. The father has it if he was married to or in a civil partnership with the mother at the time of birth or subsequently, if he is named on the birth certificate for a birth registered after 1 December 2003 in England and Wales — with different commencement dates in Scotland and Northern Ireland — or through a parental responsibility agreement or court order. A step-parent, grandparent, childminder or older sibling does not hold parental responsibility merely by bringing the child to the surgery. Where a child is subject to a care order, the local authority shares parental responsibility. A person with parental responsibility may delegate the practical arrangement of routine care, but consent for anything beyond routine treatment should come from the holder, and the practice should record who attended and in what capacity.

Only one person with parental responsibility needs to consent to routine treatment. Where those with parental responsibility disagree about a significant irreversible intervention, the correct course is to delay and seek advice, not to proceed on the strength of one consent.