As Law by Catherine Elliott

By Catherine Elliott

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In Gillick v West Norfolk and Wisbech Area Health Authority (1985), the House of Lords was asked to consider whether a girl under 16 needed her parents’ consent before she could be given contraceptive services. It was an issue on which there was by no means a consensus, with one side claiming that teenage pregnancies would increase if the courts ruled that parental consent was necessary, and the other claiming that the judges would be encouraging under-age sex if they did not. The House of Lords held, by a majority of three to two, that a girl under 16 did not have to have parental consent if she was mature enough to make up her own mind.

Qxd 4/18/06 8:39 AM Page 2 .. qxd 4/18/06 8:39 AM Page 3 Chapter 1 Case law Judicial precedent Case law comes from the decisions made by judges in the cases before them. In deciding a case, there are two basic tasks; first, establishing what the facts are, meaning what actually happened; and secondly, how the law applies to those facts. It is the second task that can make case law. Once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be treated in the same way.

At first society will be divided about them, and there will be controversy, but eventually such ideas may come to be accepted by most members of society, or most members will at least become prepared to put up with them. At this second stage we can say there is a consensus. This process can be seen in the way that views changed towards the end of the last century on subjects such as homosexuality and sex before marriage. 16 .. qxd 4/18/06 8:39 AM Page 17 Chapter 1 n Case law Law-making which takes one side or another while an issue is still controversial is what Devlin called dynamic law-making, and he believed judges should not take part in it because it endangered their reputation for independence and impartiality.

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