R v R (Interim declaration: Adult's Residence
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Year | 2000 |
| Date | 2000 |
| Court | Family Division |
Practice and procedure – Civil procedure – Interim declaration – Mother applying for interim declaration that her 18-year-old disabled son should reside with her – Whether interim declaration should be granted.
The claimant mother applied for an interim declaration under CPR 25.1 that her 18-year-old son, J, who was severely brain damaged, should reside with her after the defendant father refused to return J to her care, alleging that J had expressed a wish to remain with him. The mother submitted that since the Official Solicitor would need to make inquiries as to his mental capacity and, if he was lacking in capacity, to conduct an inquiry into what was in his best interests, it would be months until the substantive hearing and that in the meantime there should be an interim declaration to prevent J from being removed from her care. The father opposed the application contending that it was wholly premature.
Held – The application for an interim declaration in the present case was premature because the legal foundation for such an application had not yet been established. The presumption that J was entitled to and able to make decisions about his own future, where he lived and with whom he associated had not yet been displaced. Only if and when there was clear evidence before the court to displace that presumption would it be appropriate to consider whether an interim declaration should be granted. It followed that the application would be dismissed at this stage.
Case referred to in judgmentF v Riverside Mental Health NHS Trust[1994] 2 FCR 577; sub nom Riverside Mental Health NHS Trust v Fox [1994] 1 FLR 614, Fam D and CA.
Ann Chavasse (instructed by Brendan Fleming) for the claimant.
Hilary Watson (instructed by Bridge McFarland) for the defendant.
David Hershman for the Official Solicitor.
BRACEWELL J.In this case the claimant applies for an interim declaration that child ‘J’, who is known as ‘Junior’, should reside with her, pending the determination of various issues which arise in these proceedings.
The brief chronology is that the claimant is the mother and the defendant is the father of Junior, who was born on 19 October 1981. Junior therefore has attained his majority and there is a presumption that he is entitled and able to make decisions about his own future, where he lives and with whom he associates.
However, in October 1983 Junior was admitted to hospital for an operation to repair a congenital heart defect. Complications resulted...
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NHS Trust v T (adult patient: refusal of medical treatment)
...the court to make a valid interim declaration. 48 I add that in my view this approach accords with that of Bracewell J in R v R (interim declaration: adult's residence) [2000] 1 FLR 451 in which after referring to the presumption of capacity and the point that it can only be displaced by c......