Commentary on Sections Part 3: Miscellaneous New section 3: Children and young persons: capacity
65.Paragraph 2 of the schedule substitutes a new section 3 into the 2004 Act. This new section defines what is meant by a child “having capacity” and a young person “lacking capacity” for the purposes of the 2004 Act, and expands on the definition of capacity included in the original section 3, by specifying what “capacity” means with reference to the particular action being carried out by the child or by the education authority. Section 3(1) provides that a child has capacity:
66.New section 3(2) of the 2004 Act provides that, for the purposes of the Act, a young person lacks capacity to do something if they do not have sufficient understanding to do it.
67.New section 3(3) provides that a child or young person is not to be treated as lacking capacity due to a communication difficulty if the child or young person can communicate through human, electronic or mechanical aid.