Published in the New Law Journal, vol 161, 4 February 2011, p 178.
On my first day as an aspiring litigator, a partner gave some advice: litigation always goes wrong. Perhaps there was some exaggeration, but it was a sound enough warning. After all, at least half of all litigants would probably agree.
Most often the negative consequences of losing a case are simply financial, but for others rather worse may come of it. Oscar Wilde sued the Marquess of Queensbury; not only did he lose, but he received a criminal prosecution for his trouble. A more tolerant age did not help Lord Browne of Madingley, who wanted to keep his former relationship’s details quiet. He started by insisting that deference be paid to his status as the senior businessman in the land and a peer of the realm - in contradistinction, he argued, to the lowly status of his erstwhile partner and the Sunday papers who wished to publish the story. He finished by being exposed as a liar and losing his business positions into the bargain, all for the sake of the most trivial and irrelevant personal details. Jonathan Aitken, meanwhile, fell on his own sword (of truth ...).
Perhaps, however, the most ironically self-destructive consequence of a failed case is when the unsuccessful litigant's name becomes immortalised as legal shorthand for the very thing he or she tried to prevent. One unfortunate Mr Scott, in the midst of the prudish Edwardian age, took exception to his wife highlighting his marital inadequacies, and sought to have any such evidence heard in private. The point was ultimately decided by the House of Lords against him, in what remains the leading authority on open justice today (Scott v Scott [1911-13] All ER Rep 1).
Suffering a similar fate in more recent times was Mrs Victoria Gillick. In 1980, the-then Department of Health and Social Security issued a policy which would have enabled children under the age of 16 to receive contraceptive advice and treatment without their parents’ knowledge, much less permission. Mrs Gillick, the mother of ten children including five daughters, was not having that. She brought proceedings seeking a declaration that the policy was unlawful. Famously, her case failed before the House of Lords. She was then left with having established a new principle regarding the circumstances in which children might consent to treatment without parental permission, known to the present day as "Gillick-competence".
As with many other legal tales it could all have turned out rather differently. The law lords’ decision was given by a majority of one. They held that while it would be unusual for a doctor to give the advice to a child under 16 without the consent of her parents, the parent’s right to decide effectively ended once the child had achieved sufficient understanding and intelligence to understand fully what was proposed.
That was a significant development from the previous doctrine, under which the concept of parental rights and control had ruled the roost.
Almost immediately the question arose as to whether the child’s right to accept treatment also carried with it the right to refuse treatment; the Court of Appeal in subsequent cases did not think so. It remains an interesting moral conundrum: should a child competent to understand treatment be dragged into an operating theatre against her wishes? A similar logical point arises with assisted suicide: if a person has the right to refuse to take a drug even if the consequences will be almost immediately fatal, do they also have the right to accept “treatment” in the form of a fatal drug?
The lasting significance of Gillick has been the shift from parental rights to the overarching principle of the “best interests of the child”. That was reflected in the Children Act 1989 and the accompanying Family Proceedings Rules 1991. One practical consequence has been the increased opportunity for children to participate in legal proceedings. In general it may now be said that once a child has developed a certain level of intelligence and maturity, the parents’ decision-making rights fall away, or at least are greatly diminished (see Janet Bazley QC and Stephen Jarmain “Gillick and the dwindling right of parental authority” in Cases that Changed Our Lives, LexisNexis 2010).
Mrs Gillick would not have been amused. Today she might be considered somewhat old fashioned, certainly in her view of sexual morality. Opinion columns confirm that the merits of that change in public morals remain as disputed as ever.
But Mrs Gillick was also old fashioned in another respect: she held principles that went beyond her immediate personal gratification, and was prepared to stand up when she saw public injustice. Perhaps most readers might bemoan the diminishing of that ethos, even if we may differ from Mrs Gillick over what in fact constitutes public injustice.
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