It is a pleasure to serve under your chairmanship, Sir George. I congratulate my hon. Friend the Member for Mid Derbyshire on getting the Bill to this stage. It is a landmark piece of legislation and a very important Bill.
I will focus my comments specifically on legal marriage. One of the reasons why my hon. Friend’s Bill is so important is that the current legal position on consent to marry is, at best, bizarre and contradictory, and at worst, an historical anachronism. I will lay out why that is, in relation to the operation of the Mental Capacity Act 2005 and how it applies to children in this situation. As well as implementing my hon. Friend’s Bill, we really need to take forward how that Act operates.
Looking at adults, the law on consent is codified in the Mental Capacity Act 2005, which lays out what criteria one needs to show in order to demonstrate that one has the decision-making capacity to make a decision. Marriage is one of the decisions that falls within scope, along with decisions to do with sexual relations and medical treatment. There are two types of adults in this world: those with decision-making capacity for a specific decision, and those without. When capacity is lacking and a decision and action has to be taken, the clinician or whoever is involved has to assess the decision-making capacity and then make a decision in someone’s best interests. There are provisions for what is effectively proxy decision making—such as lasting power of attorney, and some situations where people take part in clinical research—but even then the person making those decisions has to act in the person’s best interests.
In general, if someone is lacking capacity and a decision needs to be made, the person acting on behalf of an individual has to make a decision in their best interests, so a best interests framework operates. However, the Mental Capacity Act 2005 states that some decisions are far too personal for someone to make a decision on behalf of someone else in their best interests. I realise that I am going into a technical wonderland of best interests, but a good example is found in medicine. Let us say that someone has been hit by a car and is unconscious. When they come to hospital, the doctors need the powers to treat them. In the context of someone who is unconscious, it is not possible to assess their decision-making capacity, so a decision has to be made in their best interests. Problems arise when there are more complicated decisions and when people are awake, conscious and able to contribute to discussions.
The Mental Capacity Act excludes a certain set of decisions. Where people lack capacity, others can make decisions on their behalf—adoption and marriage are a couple of examples. Of course, parents are able to make a range of very personal choices and decisions for their children, particularly around medical treatment, but even in medicine there are limits on how much parents can consent. When children are detained under the Mental Health Act 1983, there are certain medical interventions for which parental consent alone cannot be relied on, because it is deemed to be too personal and too complex. Electroconvulsive therapy treatment is one of them, and I believe that in the context of serious interventions for children with long-lasting consequences, there are situations where clinicians may want to go to court to get extra back-up and reinforcement because of the nature of the decision.
We have a weird dichotomy, because the Mental Capacity Act states that if an adult lacks capacity, there are decisions that no one can make on their behalf, with marriage and adoption being two examples. However, if someone is a child between the age of 16 and 18— admittedly with decision-making capacity—parental consent can be used to enter into a contract such as marriage. I think that is completely bizarre and it needs to be changed.
Marriage is a big decision, and one that we expect to be a long and lasting decision. Of course, it is not an irreversible decision because of the divorce laws that we have, but I do not think there is a situation so pressing as to not allow a decision to enter into marriage to be delayed until the age of 18. I realise that is not necessarily an uncontroversial point of view—people have different views on it, such as those with strong religious beliefs—but fundamentally I think it is absolutely right that we move marriage to the age of 18. That is because the backdrop to this is a recognition that we see people under the age of 18—children—as inherently vulnerable. Although someone between the ages of 16 and 18 may have decision-making capacity, they are still not necessarily fully mature. They are still potentially more vulnerable than an adult, and we include in our law legal gatekeepers, the thresholds that we determine one must pass to become an adult. The Bill is very important in exemplifying that a child, even someone with full decision-making capacity at the age of 16 or 17, is still someone whose potential vulnerability we have concerns about, and has not moved into adulthood.