2 September 2021
What is a Child?
Should there be more clarity?
By Lynda Goetz
At first sight this seems like a rather strange question. After all, we all know that a child is a young human who is not yet an adult. Depending on eras and cultures, the point at which a child is deemed to become an adult has been fairly easily established. In some societies puberty was a significant milestone and many societies had ceremonies to celebrate the passing from child status to adult status. In this country we have had times when boys were taken from their own families to train as knights with other noble families; times when boys from poor families were sent down mines or up chimneys and girls from an early age sent to be trained as seamstresses or sent into service; times when young women from wealthier families were stuck at home until they received an offer of marriage. Childhood as a concept has thus always been something of a moveable feast and is in many ways a modern construct. As a modern construct however it does seem fairly ill-defined.
For many years 21 was considered the magic number; the point at which the young ‘came of age’. Prior to that point they were the responsibility of parents; they could only marry with parental consent; those with inheritances or trusts to claim could usually claim them at 21; and although the age of criminal responsibility was much lower, it was unusual for anyone under 18 to be hanged for a crime. In 1969 the age of majority was reduced to 18. From a legal point of view, we currently seem to be all over the place in terms of whom we consider to be children, what they are responsible for and what decisions they can make on their own account.
Take for example the recent furore over jabs for 12-15 year-olds. Parents’ initial reaction to this was, fairly reasonably, that they should have the final word on whether or not their children receive a vaccination which is largely not for their benefit but for the benefit of the adult population, most of whom have themselves already been vaccinated. Some authorities, however, held that under the principle of ‘Gillick competence’ a child of 12 could be entitled to make that decision on their own account if they could show understanding of the issues involved. The Gillick decision, for those who do not remember the case, was a House of Lords decision taken in 1985 concerning the issuing of contraception to a child under 16 without parental consent or advice. The outcome did not really go as far as campaigner Victoria Gillick, a Roman Catholic mother of 10, would have liked, but it did set a standard. She was concerned that the Department of Health and Social Security (DHSS) as it then was, was publishing leaflets advising girls under 16 that they could get contraception from their GPs or advice centres and that their parents had no right to veto treatment or even to be advised. The use of ‘Gillick competence’ in relation to vaccinations seems to have been firmly set aside for the moment.
The very fact that it was raised as a possibility should perhaps ring alarm bells. If a child between 12 and 15 is deemed to have sufficient intelligence and understanding to fully understand what is involved in a proposed treatment including its purpose, nature, likely effects and risks, chances of success and the availability of other options, then they have passed the ‘Gillick test’. This issue has already come before the courts again as recently as last year in the case of Keira Bell, who brought a case against the Tavistock clinic over the issue of its Gender Identity Development Service (GIDS).
As most people know, the age of sexual consent is 16, regardless of a person’s gender identity, sexual identity and whether the sexual activity is between people of the same or different gender. Thus, from a legal point of view, there is nothing to stop a 30 year-old from having sexual relations with a 16 year-old, unless the adult in question is a teacher or person in authority. This latter exclusion is understandable, but has led in the recent past to a situation where a teacher and his pupil claimed to be in love and fled the country. Who is to be the judge of whether this liaison is a genuine one, simply misconceived, or whether the person in authority is indeed preying on a minor who does not possess the judgement to avoid their clutches? In Scotland the age of majority has in almost all areas been reduced to 16 (including since 2015 the ability to vote) and yet, at the same time, The Children and Young People (Scotland) Act 2014 includes all children and young people up to the age of 18.
In this country the age of criminal responsibility has been 10 since the implementation of The Children and Young Persons Act 1963 (prior to that it had been 8 under the 1933 Act). This is one of the lowest in Europe and over the years there has been much discussion on the subject and calls to raise this to at least 12. The Centre for Crime and Justice Studies and English Legal History both have interesting short articles on the subject with the article by Dr Tim Bateman discussing the pros and cons as well as the reasoning behind them. Although both articles are several years old, the arguments have not changed a great deal since then and merely confirm that the neurological development of a child’s brain is certainly not complete by 15 let alone 10.
The other major issue in all this is of course the question of finances. Increasingly these days young people do not have the wherewithal to be financially independent. If they are dependent on their parents financially, surely there is some justification for allowing those parents to have some say in the lives their children lead. The rather bizarre anomaly whereby students, who are over 18 and legally adults, are still regarded as financially dependent on parental household income should they seek anything above the basic Maintenance Grant is yet another example of our very mixed assessment of who is a child.
Would it be helpful to tinker with this via legislation or should we continue to assess things on a case by case basis and hope that on the whole it is right to prohibit the sale of alcoholic (and incidentally many non-alcoholic) drinks and tobacco to the under 18s, whilst at the same time sending 16 year-olds to the Reading Festival where a Welfare Tent is provided which ‘is open 24 hours and is staffed by experienced and supportive people who understand festivals. They can give confidential advice about drugs, alcohol, legal highs and sexual health and offer support if you need someone to talk to for any reason. They offer a monitored rest & recovery area if you’ve overdone it and can arrange a place to crash if you find yourself stranded. They also care for lost children & vulnerable people.’ ? I was left wondering in what way the former differed from the latter.
Cover page image: public domain vectors.