Section 2 of the Age of Legal Capacity (Scotland) Act 1991
Section 2 sets out important exceptions to the Section 1 baseline (under-16s have no general transactional capacity; 16+ have full capacity). These exceptions recognise real-life situations where children can act with legal effect. The section is current law on legislation.gov.uk.
The exceptions:-
1) Everyday/age-typical transactions.
A person under 16 has capacity to enter a transaction if it is:
- of a kind commonly entered into by someone of their age and circumstances, and
- on terms which are not unreasonable.
Think modest, day-to-day purchases or services where the price/terms are sensible for a young person. If either limb fails (not “common” for that age/circumstances, or the terms are unreasonable), the exception doesn’t apply.
2) Wills from age 12.
A person aged 12 or over has testamentary capacity—they can make a will (including exercising any power of appointment) if they understand what they’re doing. This is a specific statutory carve-out from the general under-16 rule.
3) Adoption: consent of the child from age 12
A person aged 12 or over has capacity to consent to the making of an adoption order in relation to themselves. The modern adoption code mirrors this: the Adoption and Children (Scotland) Act 2007 says an adoption order generally may not be made for a child over 12yo unless the child consents (subject to limited exceptions).
4) Medical, surgical & dental consent under 16.
A person under 16 can consent on their own behalf to treatment if, in the opinion of the qualified medical practitioner attending them, they understand the nature and possible consequences.
Section 2(4) is framed around consent. Where a capable child refuses treatment, the legal position remains fact-sensitive and courts retain a jurisdiction to guard the welfare of the child.
5) Instructing a solicitor & civil litigation
A person under 16 has capacity to instruct a solicitor in a civil matter where they have a general understanding of what that means. There is a statutory presumption that a child aged 12 or over has that understanding. Someone with capacity to instruct a solicitor also has capacity to sue or defend in civil proceedings (this does not address criminal capacity).
6) Transactions outside these exceptions are void
If an under-16 purports to enter a transaction after commencement and they do not have capacity by virtue of Section 2, the transaction is void (it never had legal effect). This is a strong consumer-protection outcome for children.
Practical examples (Scotland)
- 14-year-old buys trainers online at a normal price: likely valid under s2(1) (common for age; reasonable terms). A 24-month mobile contract with hefty fees, by contrast, is unlikely to be “common” or “reasonable” for that age.
- 13-year-old’s will leaving savings to a sibling: possible under s2(2) if they understand the effect.
- 12-year-old in adoption proceedings: the court will consider the child’s own consent to the order (subject to the 2007 Act framework).
- 15-year-old consenting to dental surgery where the dentist is satisfied they understand: valid under s2(4).
- 13-year-old instructing a solicitor about school exclusion or contact/residence: presumed capable if over 12yo (rebuttable), so the firm can accept instructions and raise/defend civil proceedings.
How Section 2 fits with Sections 1 & 3
- Section 1 is the baseline: under-16s lack general transactional capacity; 16+ have full capacity. Section 2 sets the exceptions.
- Section 3 gives a safety-net for 16–17-year-olds: the court may set aside prejudicial transactions entered into between 16 and 18 (application before age 21). This is separate from the under-16 exceptions in Section 2.
Common pitfalls
- Assuming all “small” contracts are valid. The two-limb test (common for age/circumstances and reasonable terms) must both be met.
- Confusing “consent” with “refusal”. Section 2(4) confers capacity to consent; refusal cases need careful welfare analysis and can reach court in exceptional scenarios.
- Overlooking the 12+ presumption for instructing solicitors, this is a statutory presumption in civil matters.
FAQs
Can under-16s sign any contract if a parent agrees later?
Not automatically. If the Section 2 exception doesn’t apply, the child’s “contract” is void, even if a parent later approves. Consider a fresh agreement with the adult.
Does the 12+ will rule need witnesses?
Yes, ordinary will-making formalities still apply; Section 2(2) simply gives capacity to make a will from 12onwards (Your solicitor will ensure correct execution).
Medical consent: who decides capability?
The attending qualified medical practitioner decides whether the young person understands the nature and possible consequences.
Adoption: is a 12+ child’s consent always required?
As a rule, yes under the 2007 Act, unless an exception in that Act applies. The court still assesses the child’s welfare.
Can a 13-year-old instruct XK Solicitors about contact or exclusion?
Yes, presumed capable at over 12yo if generally understand what instructing a solicitor means; capacity is judged individually.
How our Aberdeen family law team can help
At XK Family Law Solicitors Aberdeen, we regularly advise on children’s rights and capacity, including which school a child should attend, medical consent issues, holidays etc. We can represent children and families across the North-East.
Ready to discuss your case?
Email: info@xksolicitors.co.uk
Our articles are not legal advice. We accept no responsibility for use of this information.