Henry VI and the autonomy of infants

Andrew Bainham Emeritus Reader in Family Law and Policy University of Cambridge

Taking the historical example of Henry VI the infant king this article explores the extent to which it is legitimate to impute views to infants. Henry VI was a baby when he came to the throne in 1422.  Many significant acts of state were attributed to him while an infant.

Six hundred years later family judges have to grapple regularly with welfare issues affecting young children who are unable to express a view themselves. Consideration is given to recent jurisprudence on the use of substituted judgment in the context of life and death decisions. The Children Act 1989 in principle requires the views of all children to be taken into account in the light of their age and understanding. Local authorities regularly attribute views to young children acting on guidance which makes it plain that views can be ascertained other than through verbal expression. Substituted judgment could have significance in the context of post-adoption contact an area of the...