Children’s Competence to Consent

Abstract

The question of children’s competence to give or refuse consent¹ is of largely recent origin (see Chapter 9). Until the mid-sixties it was not clear that children were “persons” within the meaning of the Fourteenth Amendment, which makes the Bill of Rights applicable to the states. Although there were several early-twentieth-century “children’s rights” cases decided by the United States Supreme Court,² each of these could be construed as a vindication of parents’ liberty interest in childrearing as they saw fit (Melton, 1982). In none of the early cases was there a clear indication of minors’ possessing constitutionally protected fundamental liberties independent of their parents. Children were perceived as properly dependent upon their parents who possessed a “right of control” over them.³ Even though parents’ rights in this regard are limited by the fact that they are not “free … to make martyrs of their children,’⁴ this restriction emanated from the state’s interest in the socialization of children.⁵ Indeed, the Supreme Court had held that it “would hardly seem open to question” that the state could impinge on basic freedoms of minors (e.g., freedom of religion) in ways that would be clearly unconstitutional if the same restrictions were placed on adults.⁶ Given clear indications that both parents and the state as parens patriae ⁷ could exercise control over minors (see Chapter 9 for additional discussion), the question of the limits of children’s actual competence to make personal decisions was moot.