OPINION:When does childhood end? There is no single answer, writes FINOLA KENNEDY
A CONSTITUTIONAL referendum on the rights of children is due early next year. An intrinsic element of such a measure is the definition of “child” and “children”. Currently the definition of “child” varies widely according to the context. In the approach to the referendum it may be helpful to outline some of the variations.
Child benefit is paid until the child is aged 16, or 18 if in full-time education. Under the one-parent family payment, a child aged between 18 and 22 in full-time education is deemed a qualified child. Changes were introduced to the latter in April 2011 whereby a new age limit of 14 will be introduced over a six-year period.
Some Irish students in the US during the summer on J1 visas were caught tampering with their passports in order to pretend that they were 21 – the age at which they could buy alcohol there. In Ireland they could buy alcohol at 18. They could also vote in elections and marry. In certain circumstances they might obtain a court exemption order to marry below the age of 18.
At 16 a young person is free to leave school and enter employment. Part-time employment is permitted at younger ages. Also at the age of 16 a young person can drive certain motor cycles while a 17-year-old can drive a vehicle with up to eight passengers.
The civil law in Ireland relating to the minimum age at marriage reaches back to the common law of England, itself based on canon law of the Catholic Church prior to the Reformation which in turn reaches back to Roman law and the Code of Justinian.
The permitted age of marriage according to the Catholic Church – which covers a wide range of cultures – is set down in the 1983 code of canon law. According to canon 1083, “A man cannot validly enter marriage before the completion of his sixteenth year, or a woman before the completion of her fourteenth.”
The local Episcopal Conference may establish a higher age; for example, in England and Wales, the age has been fixed at 16 for males and females to coincide with the civil legal age for marriage there of 16 years.
Seventeen is the age of consent for sexual relations. Last year there were 311 births to 17-year-olds. In 15 cases this was the mother’s second child. There were 172 births to girls below the age of consent, of which 128 were births to 16-year olds; six of those were second births. The remaining 44 births were to girls aged 15 years and under.
The minimum age at which a person is considered to have the capacity to consent for medical treatment raises issues of maturity. A study published in 2009, led by a Dublin GP, about prescribing contraceptives to girls aged 16 years or younger, pointed to concerns regarding consent. Given that the age for sexual relations is 17, there is a legal concern for doctors who prescribe to girls below that age. There are also issues for pharmacists.
Some GPs rely on the Gillick case in 1985 in the UK in which a mother sought to prevent her children being prescribed contraceptives without her consent. The ruling went against the mother to the extent that the doctor could decide if the young person had sufficient understanding to make an informed decision. The decision is known as “the mature minor rule”. The Law Reform Commission has published a report in which it says that 16- and 17-year-olds should be presumed to have full capacity to consent to, and refuse, medical treatment. This includes surgery, access to contraception and mental health services. The commission follows Gillick in suggesting that those under 16 may, in exceptional circumstances, be fit to give consent, or to refuse consent, based on an assessment of their maturity. The area of medical consent can pose problems even for those of mature years. In some cases consent may ultimately be based on trust in the competence of the medical practitioners, rather than a real grasp by the patient of all medical implications. This can be so in the case of prescribed medicines where contrary views may be expressed by well regarded medical practitioners in relation, for example, to the side effects of certain drugs. If that is the case – that doctors differ – and they do – how more complex is consent for the patient whether aged above or below 16 years?
Genuine concern for the rights of children must be based on their right to be children and to prepare them gradually for the time when childhood ends, whenever that is deemed by law to occur.
Finola Kennedy was a lecturer in UCD and the Institute of Public Administration