Gillick competent minors and parental authority: lessons from S v F and M [2025] EWHC 439 (Fam)

The recent ruling by Mr Justice Hayden in S v F and M [2025] EWHC 439 (Fam) highlights the delicate balance between the lawful exercise of parental responsibility and the wishes and feelings of a Gillick competent child.

Facts and judgment

S, born in the UK, was removed to Ghana by his parents in March 2024 under the pretext of visiting a sick relative. In reality, his parents had enrolled him in a Ghanaian boarding school without his prior knowledge. Their decision stemmed from growing concerns about S’s disengagement from school, his association with potentially harmful peer groups, and fears that he was being drawn into gang culture in London.

S objected to staying in Ghana and issued legal proceedings, arguing that his rights had been violated and that he should be allowed to return to the UK. The court ruled that:

• S’s habitual residence remained in the UK because the focus of his life was London, his move had been involuntary, and he had gone to great efforts to secure his return;
• S was a Gillick competent child whose wishes, in light of his age and understanding, were significant, though not determinative;
• While S’s removal to Ghana had been deceitful, his parents’ actions fell within the wide ambit of parental responsibility; and
• Despite acknowledging S’s distress and the parental breach of trust, returning to the UK would pose a greater risk to S’s welfare. Given the evidence of S’s potential exposure to criminal influences, his best interests lay in remaining in Ghana under family supervision.

Parental authority versus children’s rights

The case underscores the enduring principle that parents hold primary responsibility for their child’s upbringing. However, it also affirms that this authority has limits: parental decisions must align with the child’s welfare and must not cross into mistreatment or significant harm.

The court also recognised that S, at 14 years old, had a right under Article 12 of the UN Convention on the Rights of a Child (UNCRC) to have his views taken into account. The case, thus, raised the thorny issue of whether a competent minor’s preference should override parental authority.

The court recognised that while parental authority is broad it is not absolute, and that resolution of an application concerning a Gillick competent child requires the child’s own views to be factored into a best interests decision relating to his/her welfare, ultimately concluding that it must look at the child’s welfare interests in the round.

Parental responsibility and harm

The judgment also considers the line between parental responsibility and harm. The parents argued that their actions were protective rather than punitive, motivated by fears for S’s safety in London. The court accepted this reasoning, noting that S had exhibited multiple risk factors associated with gang involvement, including truancy, associating with delinquent peers, and possible financial exploitation. However, the deception used to remove S to Ghana was strongly criticised. Had there been evidence of malign motives on the part of the parents, the outcome may have been different.

Implications for future cases

The ruling in S v F and M has important ramifications for family law, particularly in cases involving international custody disputes. Key takeaways include:

1. Children’s rights matter: The case highlights the increasing weight given to the views of older children in legal proceedings, particularly when they are deemed competent to make decisions about their welfare.
2. Parental responsibility remains important but has limits: The judgment clarifies that while parents have broad discretion in decision-making, their actions must be justified in light of the child’s welfare and must not constitute harm or mistreatment.
3. Cross-border disputes require careful scrutiny: Courts will closely examine the circumstances of a child’s removal in international cases, ensuring that decisions are made in the best interests of the child rather than based on parental convenience.

Ultimately, this case illustrates the complexity of balancing parental authority, children’s rights, and legal jurisdiction in cross-border custody disputes. It reinforces that while parents are entitled to take protective measures for their children, these actions must be lawful, transparent, and aligned with the child’s best interests. Future cases will likely build upon this precedent, further refining the legal boundaries of parental responsibility in an increasingly globalised world.