These are the notes of the children's rights and parents rights' course in family law during the first year of law. This can be used by high school students as well.
All children are born right holders
As a child grows and matures, there may be a conflict between the
child’s right to ‘self-determination’ and the parents’ responsibilities
and rights in relation to the child’s upbringing.
Section 1(1)(b) of the Age of Legal Capacity (S) Act 1991 states that ‘a
person of or over the age of 16 years shall have legal capacity to enter
into any transaction’.
Law- a child reaches the age of majority at 18 (Age of Majority (S) Act
1969, Art 1 of UNCRC.
Legal Transactions- Children under 16
All children of any age have passive legal capacity (for example: right
to own property)
Child under 16 has no active capacity- child cannot enter into juristic
acts, for example make a contract or defend their rights in court.
The right to act as a child’s legal representative is one of the PRRs
When a parent enters into a contract which is disadvantageous for the
child, the contract is still valid. Remedy will be against parents by the
child if seeked.
Exceptions to the general rule of no active legal capacity for under 16s:
1. A child can enter into a transaction that is common for their age
and circumstances as long as its not unreasonable
2. A child aged 12 has the legal capacity to make a will, the child
can test on both heritable and moveable property
3. Adoption order or permanence order has to be made with the
consent of the child if the age of the child is 12 or over.
4. A child under 16 has the capacity to consent to medical
procedures if, in the opinion of a qualified medical practitioner
attending the child, the child is capable of understanding the
nature and possible consequences of the procedure or statement
no lower age limit in s 2(4) of the Age of Legal Capacity (S)
Act 1991
This section is enabling, it empowers the child to consent
The act is silent on whether the child has the capacity to
refuse consent.
, It can be argued that performing medical procedure
without the consent of the child can be an invasion of
bodily integrity which is illegal.
Support for this view in s 186 of children’s hearings
(s) act 2011- it says that a court order cannot
override the child’s right to refuse consent under
section 2(4).
S 131a of the Education (s) act 1980 presupposes
that a child with s 2(4) capacity can refuse to
consent to medical procedures carried out by school
doctors.
In practice, in cases where the child refuses consent, the
medical practitioner finds the child to lack capacity to
understand the situation and asks the parents to consent.
5. A child under 16 can instruct a solicitor in a civil matter provided
child has a general understanding of it. A child aged 12 is
presumed to be of sufficient age and maturity.
6. Under 16 parents automatically have PRRs
Young persons aged 16 but under 18 years old
Has legal capacity to enter into any transaction.
The court has the power to set the transaction aside if it is a prejudicial
transaction until the young person reaches 21 years of age
Prejudicial transaction- a transaction which an adult, exercising
reasonable prudence, would not have entered into in the
circumstances of the young person at the time of entering into the
transaction and has caused or is likely to cause substantial prejudice to
the young person.
Certain transactions cannot be set aside
o Consent to adoption orders
o Medical procedures
o In the course of young persons’ trade, business or profession
o Fraudelent misrepresentations as to age
o Ratified transaction after the age of 18 by the young person
When a young person is 16-18, all parties to a proposed
transaction may make an application to the court to have
the transaction ratified.
Delictual Liability
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