Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112: an archaeological study of a test case

Abstract

In 1985, the case of Gillick v West Norfolk and Wisbech Area Health Authority confirmed that it was lawful for a child under the age of sixteen to validly consent to their own medical treatment without parental knowledge or permission, provided that they had ‘sufficient understanding and intelligence to understand the nature and implications of the proposed treatment’. Hailed as a landmark case, Gillick has been explored extensively. Scholars have generally based their investigations on the narrative of the case that is provided in the published law reports. However, there is a more detailed story to be told, which can only be uncovered by examining the context in greater depth. Using ‘legal archaeology’, a methodology which as far as the author is aware, has not previously been used to study Gillick, this thesis conducts an analysis of the social and historic background of the litigation through an analysis of primary and secondary sources, including materials that have never previously been examined.

The purpose of the analysis undertaken in this thesis is threefold. First, it offers new information on how the case of Gillick came about, through the incorporation of new information from primary materials into the historical record. It enriches the existing understanding of how this well-known landmark case reached the courts as a result of a strategic agenda to progress the campaign against ‘secret schoolgirl contraception’ and to ensure that society would protect traditional family values. Moreover, this thesis confirms that Gillick should be viewed as a ‘test case’ (for the purpose of this thesis the term ‘test case’ is treated as synonymous with strategic litigation and public interest litigation). Second, the examination of Gillick contributes to existing discussions of ‘test case’ litigation and provides an assessment of the key characteristics of a ‘test case’, as well as the role and function of ‘test cases’ in the English legal system. Finally, this analysis of Gillick adds to the current understandings of ‘legal archaeology’ which, at present, is not widely used, and thus its methodological potential has not yet been fully explored. This thesis draws conclusions about the process of conducting a 'legal archaeology' project, including its advantages and disadvantages. It advocates utilising ‘legal archaeology’ as an approach for the micro-level study of individual cases. It argues that ‘legal archaeology’ is well-suited to examining cases that are thought to be ‘test cases’ because of the emphasis that this methodology places on building an accurate narrative of how and why a particular case came into existence. This thesis further suggests that 'legal archaeology' should be adopted by scholars who wish to better understand the wider context of an individual case, as well as by those who wish to respond to macro-level questions, including those about the way cases are constructed, and the role ‘test case’ litigation plays in the English legal system.

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