Complaining on behalf of children

The person with parental responsibility may complain on behalf of children under 16.

The Children Act 1989 sets out who has parental responsibility. These
include

• the child’s parents if married to each other at the time of conception or birth
• the child’s mother, but not father if they were not so married unless the father has acquired parental responsibility via a court order or a parental responsibility agreement or the couple subsequently marry
• the child’s legally appointed guardian – appointed either by a court or by a parent with parental responsibility in the event of their own death
• a person in whose favour a court has made a residence order concerning the child
• a Local Authority designated in a care order in respect of the child (but not where the child is being looked after under section 20 of the Children Act, also known as being ‘accommodated’ or in ‘voluntary care’)
• a Local Authority or other authorised person who holds an emergency protection order in respect of the child.

Foster parents, step-parents and grandparents do not automatically have parental responsibility.

If the mother is herself under 16, she will only be able to give valid consent if she herself is “Gillick competent” (external link) to take the decision in question. Whether or not she is able to give valid consent on behalf of her child may therefore vary, depending on the complexity of the decision to be taken.

If a child is a ward of court, all “important steps” in the child’s life must first be approved by the court.

In order to be judged “competent” a child has to have sufficient intelligence and maturity to fully understand

• what is involved in bringing a complaint
• what the procedure entails
• the involvement that will be expected of him or her
• and the likely consequences of complaining.

The more ‘serious’ the complaint, the greater the level of understanding that will be required. Whether a child is competent to complain needs to be ascertained in every case. Suitably experienced advocates should support children to enable them to make a complaint if this is appropriate.

Where the child is mature enough to understand the nature of the complaint

Where the child is mature enough to understand the nature of the complaint, the Department of Health guidelines (external link) for the consent of children and young people should be followed.

Where the child requests that any information is not disclosed to their parents, this should normally be respected unless it is deemed to be in the child’s or the public’s interest to disclose it.

Where children are competent to give consent for themselves, their own signature on a consent form is sufficient without the need for their parents also to sign. If parents have been involved in the decision, however, it may be appropriate for both the child and their parent to sign.

Next: Consent to treatment