Competent Kids: Competency is not only for Adults

2021: HPCSA CPD Accredited for 1 CEU - The capacity of children to perform juristic acts is limited to protect them from their immaturity of judgment. The primary result of this is legal certainty- everyone (the parent, healthcare worker, judge, educator) is perfectly safe and the legal position is certain - except, if we think about it, possibly the child. In a modern democracy with a Bill of Rights which has the intent of protecting a child's best interest, legal certainty should only be found subjectively, that is, relative to the child and her capacity.

9 Lessons

HPCSA CPD Accredited for 1 CEU, level 1

Estimated duration to complete: 1 hour

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The essential issue is, how does one find a balance between autonomy and nurturance with regard to a particular child. A rigid pursuit of legal certainty (e.g.with fixed ages) will most certainly undermine the nurturance and autonomy of children.

In the United Kingdom, in Gillick v West Norfolk and Wisbech Area Health Authority and the DHSS (unfortunately for Mrs Gillick, now referred to as the Gillick decision, or just Gillick, or with reference to the Gillick criteria) the House of Lords (the highest legal authority in the UK), deviated from the pursuit of legal certainty with reference to fixed age, and by mouth of Lord Scarman recognised the so-called “maturation factor”. He held that children under 16 acquired an understanding and intelligence needed to give valid consent, by virtue of age, but also when “[they reach] a sufficient understanding and intelligence to be capable of making up [their own minds] on the matter requiring decision”.

This test allows for an individualistic assessment of a particular child’s level of maturity and intellectual ability.

It is important for psychologists and counselors to have a basic understanding of legal framework within which they find themselves when they deal with children. Critical to understanding this background, is an understanding of the basic under-lying law.

This understanding will enable psychologists and counselors as the safety net of the last resort, to provide better guidance to clients, whether children or adults, at critical moments for the children concerned.

Note that this course is an overview of the subject matter. Clients should always be advised to seek professional advice from an attorney. Applying legal and financial principles to the factual circumstances of clients are always complex and fraught with risk.

We express our gratitude to the authors of the resources listed in the Bibliography.

The author’s bio is elsewhere on the site.

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