O F E D I N B U R G H Children’s AUTONOMY & the age of legal capacity IN SCOTLAND
CONTENTS 1. INTRODUCTION 2. FINANCIAL & CONTRACTUAL CAPACITY 3. FINANCIAL & CONTRACTUAL CAPACITY (CONTINUED) 4. MEDICAL DECISION MAKING 5. MEDICAL DECISION MAKING (CONTINUED) 6. CREATION OF TESTAMENTS 7. CRIMINAL REPONSIBILITY 8. LEGAL REPRESENTATION 9. CONSENT TO SEXUAL ACTIVITY 10. ACKNOWLEDGEMENTS
Legal capacity means a person’s official ability to have rights, take on responsibilities, and make legal decisions. In Scotland, every person is assumed to have this ability from birth, but they usually cannot use it to make legal agreements or take independent actions until they turn 16. RELEVANT LEGISLATION The Age of Legal Capacity (Scotland) Act 1991 Section 1, subsection (1), paragraph (b): a person of or over the age of 16 years shall have legal capacity to enter into any transaction. This means that while children have rights from birth, they may not be able to fully use or enforce them on their own. Instead, a legal representative—usually a parent—steps in to protect and exercise these rights for them. A child’s ability to make their own decisions depends on their understanding of their legal capacity. In Scotland although the general rule is that legal capacity begins at 16, there are key exceptions to this, which are outlined in the Age of Legal Capacity (Scotland) Act 1991. This approach creates a balance between giving children independence and making sure they aren’t given responsibilities they might not yet be ready to handle The University of Edinburgh Street Law Society is dedicated to improving legal awareness and empowering people by making the law easier to understand. Since complex legal language can often create obstacles instead of opportunities for justice, this report aims to simplify and explain the legal framework surrounding children’s rights in Scotland. We will be exploring the following areas of law, where legal capacity arises. Financial and Contractual Relationships Medical Decision Making Testation and Property Criminal Responsibility Legal Representation in Court Consent to Sexual Activity Note: This report is intended for educational and informational purposes only. It does not constitute legal advice, nor should it be relied upon as a substitute for professional legal counsel. While every effort has been made to ensure the accuracy of the information presented, readers should consult a qualified legal professional for specific advice regarding their individual circumstances 01
01. FINANCIAL CONTRACTUAL The law in Scotland (The Age of Legal Capacity (Scotland) Act 1991) says that when someone under 16 tries to make any transaction, it will generally not count. RELEVANT LEGISLATION The Age of Legal Capacity (Scotland) Act 1991 Section 1, subsection (1), paragraph (a): a person under the age of 16 years shall, subject to section 2 below, have no legal capacity to enter into any transaction; This protects children because many contracts, online agreements, and matters relating to money are complicated. This rule keeps children safe from being tricked or agreeing to things they don't fully understand and are harmful to their interests. Does this mean children can't buy anything on their own? No! Section 2(1)(a)(b) of the 1991 Act presents an exception to this general rule. The law does lets children enter into transactions if: 1. The transaction is for something kids their age normally buy 2. The conditions of the deal are fair and not unreasonable Both must be true for the purchase to be allowed. This means children can buy everyday things like food at school. They might even be able to buy bigger items like a game console if the price and terms are not unreasonable. An example of a transaction that the law tries to protect children against could be of this type: EXAMPLE SITUATION: Let’s say a 13-year-old boy, Kris, wants to buy a used bike from an older teenager. The seller agrees to sell it to kris if the agrees to an instalment plan, where he pays small amounts of money over time, but the total price paid is actually a lot more than the bike’s actual selling price (it is inflated). Kris is unaware of the overpricing, so he agrees. Under the Age of Legal Capacity (Scotland) Act 1991, this transaction would likely be void. 02
Q. Does these legal protections end, when a young person turns 16? No! The 1991 Act also helps protect people who are between 16 and 18 years old who sign unfair (prejudicial) agreements. These prejudicial agreements can be cancelled by asking a court for help. This is explained in section 3 of the 1991 Act, which also explains what a "prejudicial agreement" means. RELEVANT LEGISLATION The Age of Legal Capacity (Scotland) Act 1991 Section 3, subsection (2), paragraph (a)-(b) (2)In this section “prejudicial transaction” means a transaction which— (a) An adult exercising reasonable prudence would not have entered into in the circumstances of the applicant at the the time of entering into the transaction, and (b) has caused or is likely to cause substantial prejudice to the applicant. If the young person themselves wants to cancel the agreement, they must ask the court before they turn 21 years old. EXAMPLE SITUATION: James is 16 and wants to be a musician in the future. A talent agency offers to help make him famous. They pressure him to sign a three-year contract that: Makes him pay a lot of money upfront Charges fees for promotion, studio time, and management Stops him from working with other agents (exclusive agreement) unless he pays big financial penalties (like a fine) At first, James is excited. But later, he realizes the agency isn't helping much for all the money he's paying. By the time he turns 18, he has money problems and learns that other agencies charge much less for the same services. James feels stuck, so he asks a lawyer for help. The lawyer tells him he can ask a court to cancel the contract under Section 3 of the Age of Legal Capacity (Scotland) Act 1991. Since he signed when he was under 18 and the contract was clearly bad for him, the court might cancel it as a prejudicial transaction. 03
02. MEDICAL DECISION-MAKING When we talk about legal transactions, we don’t just mean those involving money. Transactions can also medical procedures like surgeries. Doctors and medical practitioners need the informed consent of the patient before they can begin any medical procedures, in these situations, we have to ask: who has the ‘legal capacity’ to consent to such a procedure? In most cases, this means parents can consent to medical treatment on their child’s behalf. A parent’s rights and responsibilities are seen necessary as the Age of Legal Capacity (Scotland) Act 1991 says that no one under 16 is considered capable of entering into a legal transaction. However, there are some exceptions to this rule. For children under the age of sixteen, their parents hold specific responsibilities and rights in relation to them─the main one being the authority to act as the child’s legal representative. SECTION 2(4) EXCEPTION RELEVANT LEGISLATION Children (Scotland) Act 1995 Section 1, subsection (1), paragraph (d) Section 2, subsection (1), paragraph (d) 1 (1) a parent has in relation to his child the responsibility— (d) to act as the child’s legal representative 2 (1) a parent, in order to enable him to fulfil his parental responsibilities in relation to his child, has the right— (d) to act as the child’s legal representative RELEVANT LEGISLATION The Age of Legal Capacity (Scotland) Act 1991 Section 2, subsection (4) A person under the age of 16 years shall have legal capacity to consent on his own behalf to any surgical, medical or dental procedure or treatment where, in the opinion of a qualified medical practitioner attending him, he is capable of understanding the nature and possible consequences of the procedure or treatment. In practice, this means that for a child under 16 to consent to medical treatment, a qualified doctor must decide in their favour. This raises an important question—if a child is considered to have this capacity, does their decision take priority over their parents' wishes? For example, can a child choose to undergo medical treatment without parental consent? 04
In Scotland, the wording of section 2(4) of the Age of Legal Capacity (Scotland) Act 1991 is key in determining what happens when a child and their parent disagree on medical decisions. On the surface, it gives children a high level of independence in making their own medical choices. Additionally, the language of Section 2(4) remains silent on a critical question: If a qualified medical practitioner determines that a child has the capacity to consent to a medical procedure, does this mean they also have the capacity to withhold consent? It is argued that this is in fact the case, and support for this view is found in the Children’s Hearing’s (Scotland) Act 2011 which provides that even if it is on the instructions of the court, that a child is to undergo certain medical treatment, the child’s section 2(4) capacity is not overridden. This means that a child can potentially make a decision against their best interest, if in the opinion of a qualified medical practitioner they understand the nature and consequences of their decision. So, children in Scotland, in theory, can refuse treatment—even life-saving ones—if they are deemed capable by a qualified medical practitioner. The British Medical Association’s official toolkit published in 2021 supports this view: a competent refusal by a child or young person cannot be overridden by any other person, or by the court, even if that treatment is necessary to save or prolong life. HOWEVER it further states, Given the lack of case law, this matter is not beyond doubt and legal advice should be sought when such situations arise. Thus, the legal position in Scotland remains subject to potential development. Where concerns arise— particularly in cases of contested medical decisions—seeking independent legal advice is essential. 05
03. CREATION OF TESTAMENTS When can children make a will? Even though the general rule is that children under 16 cannot make legal decisions, such as signing contract, there is a notable exception—children aged 12 or older can legally make a will. This reflects an important legal recognition that, by this age, a child may have the maturity and understanding to decide what happens to their property after they pass away. RELEVANT LEGISLATION Age of Legal Capacity (Scotland) Act 1991 Section 2, subsection (2) A person of or over the age of 12 years shall have testamentary capacity, including legal capacity to exercise by testamentary writing any power of appointment. note: note: Parents cannot make a will for their child despite being the child’s legal representative. The law is clear that deciding who gets your things when you pass away is a personal choice, and in Scotland, children 12 and older have this right. A child who is 12 or older can decide who gets: Their land or buildings (heritable property) Their personal items, money, and other belongings (moveable property) 06
04. CRIMINAL RESPONSIBILITY Since December 2021, the Age of Criminal Responsibility (Scotland) Act 2019 has set the minimum age at which a child can be held legally responsible for a crime at 12. This now matches the age at which they can be prosecuted in court. Previously, Scotland had one of the lowest ages of criminal responsibility in Europe at just 8 years old. Raising the age to 12 reflects a shift towards balancing accountability with an understanding of child development and rights, bringing Scotland’s laws more in line with modern international standards. RELEVANT LEGISLATION The Age of Criminal Responsibility (Scotland) Act 2019 Section 1 A child under the age of 12 years cannot commit an offence.” If a child is 12 or older but not yet 16 and is accused of committing a crime, they cannot be taken to court and prosecuted like an adult. Instead, a case against them can only go forward if Scotland’s top public prosecutor, the Lord Advocate, personally approves it. This rule exists to make sure that young people are not automatically treated as criminals and that their cases are handled with care and oversight, considering their age and circumstances RELEVANT LEGISLATION Criminal Procedure (Scotland) Act 1995, Section 42,subsection (1). A child aged 12 years or more but under 16 years may not] be prosecuted for any offence except on the instructions of the Lord Advocate, or at the instance of the Lord Advocate]; and no court other than the High Court and the sheriff court shall have jurisdiction over such a child for an offence Rather than being prosecuted in a criminal court, these children are usually sent to a Children’s Reporter, and their case is dealt with through the Children’s Hearings System. This system aims to help and support the child, focusing on their well-being and rehabilitation instead of punishment, recognising that young people who get into trouble often need guidance and intervention rather than criminal penalties. 07
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