But for the Barriers: Significant Extensions to Children's Capacity

Abstract

This article focuses on children's capacity to exercise legal rights. It is argued that, undisturbed by the High Court's subsequent decision, the Family Court in B & B & Minister for Immigration and Multicultural & Indigenous Affairs [2003] Fam CA has found that a child's capacity is qualified only by contingent factors. This represents a significant development of the prevailing Gillick approach for the determination of the competence of children and young people. Where the Gillick approach requires a positive inquiry as to whether the actual maturity level of an individual child or young person is adequate relative to the question at issue, the new approach focuses on barriers to justice encountered by the child. At least in relation to some matters, capacity is presupposed.