Establishing a child's competency

Objective

Children and young people should be involved in all decisions about their life and increasingly able to make decisions for which they are capable. 

Policy status

• • • The Children Act 1989
    • The Human Rights Act 1998
    • The Assessment Framework
    • Mental Health Act 1983, Code of Practice 19
    • Gillick v West Norfolk and Wisbech AHA (1986) AC 112 (The Fraser Guidelines)

Key points

• • • It is important to assess maturity and understanding on an individual basis, with regard to the complexity and importance of the specific decision to be made.
    • A young person who has the capacity to consent to simple things may not have the capacity to consent to something more complex.
    • You must decide whether a young person is able to understand the nature, purpose and possible consequences of whatever action you propose to take.
    • You must also assess whether they can understand the consequences of you not taking the proposed action.
    • It is paramount that the local authority demonstrates that it has taken account of equality issues that could be considered as having a bearing on the decision (e.g. interpreters).
    • For you to consider them capable, the young person must be able to understand the information, demonstrate an ability to make an informed decision, and be able to communicate their decision to others.
    • The ability to consent depends more upon ability to understand options and make an informed decision rather than on chronological age.
    • Any person with parental responsibility has the ability to make a decision on behalf of a child.
    • Children attain the legal right to make decisions about most aspects of their lives by the age of 16 years.
    • If a child decides that they wish to follow a course of action which would place them at risk of significant harm, further consideration will have to given and their views and wishes  may not be given precedence.
    • In complex situations, the social worker or team manager may discuss the case with heads of service and legal services.

Standards

• • • Decisions about aspects of the child's welfare are taken in partnership with the child, parent and anyone else with parental responsibility.
    • If the local authority and parents cannot agree on a decision where the child is on a care order, the local authority will take legal advice, assess the level of risk and make the decision based on the child's best interests.
    • The local authority will only seek to override a child's decision if they consider it in the child's best interests to do so. The team manager should discuss the case with heads of service and legal services.
    • The local authority will promote the ability of children and their parents to make informed decisions by providing information in an understandable and accessible way.

Quick links

• Assessment
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  • Environmental factors, peers & community
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• Children with Disabilities
  • Supporting Children with a Disability
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  • Short Breaks Services and Social Inclusion
  • Transition to Adulthood
  • Children's Occupational Therapy