Re C (Adult Patient) (Access: Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Date | 1994 |
| Court | Family Division |
EASTHAM, J
Access – adult mentally handicapped child – parents separated – non-custodial parent seeking access – whether High Court had jurisdiction to grant declaration as to access.
Jurisdiction – High Court – application for access by parent to adult mentally handicapped child.
The parents had a severely mentally handicapped daughter who was now aged 23. The parents together had run a registered home for handicapped persons until they separated and were divorced. The father continued to run the home and the daughter lived there. The mother complained that she had been prevented from having access to the daughter. She therefore sought a declaration that it was necessary in the best interests of the daughter that the mother should have regular access to her. The matter was referred to a Judge on the issue of whether the court had jurisdiction to grant the declaratory relief sought.
Held – In the case of a mentally handicapped adult the High Court's declaratory jurisdiction extended to the lawfulness or unlawfulness of the treatment of such an adult patient. Treatment included whatever was necessary for the patient's well-being. Access to a child was the companionship of a parent and questions of access were inextricably tied up with the question of the child's welfare. Access to a mentally handicapped child who never grew up retained a crucial importance which it lost when a normal child was emancipated on reaching maturity. By common law a parent had a right of access to an adult child who was a patient. Further, interference by a custodial parent with the other parent's access to a child was capable of being remedied by habeas corpus. For these reasons the High Court had jurisdiction to make the declaration sought.
Statutory provisions referred to:RSC Ord 15 r 16.
Cases referred to in judgment.A Re [1992] 3 Med LR 303.
Airedale NHS Trust v Bland[1993] 1 FCR 485; [1993] 3 WLR 316; [1993] 1 All ER 821.
F (Mental Patient: Sterilization), Re [1990] 2 AC 1; sub nom F v West Berkshire Health
Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545.
H (Minors) (Access), Re[1992] 1 FCR 70.
J (A Minor) (Medical Treatment), Re[1992] 2 FCR 753; [1992] 3 WLR 507; [1992] 4 All ER 614.
J (A Minor) (Wardship: Medical Treatment), Re [1991] FCR 370; [1991] Fam 33; [1990] 3 All ER 930.
KD (A Minor) (Ward: Termination of Access), Re [1988] FCR 657; [1988] AC 806; [1988] 1 All ER 577.
M v M: (Child: Access) [1973] 2 All ER 81.
R (A Minor) (Wardship: Consent to Treatment), Re[1992] 2 FCR 229; [1992] Fam 11; [1991] 4 All ER 177.
T (An Adult: Medical Treatment), Re[1992] 2 FCR 861; [1992] 3 WLR 782; [1992] 4 All ER 649.
Additional cases cited and referred to in skeleton arguments:Bayer A G v Winter [1986] 1 WLR 497: [1986] 1 All ER 733.
J v C [1970] AC 668; [1969] 1 All ER 788.
Jones v Cunningham (1963) 371 US 236.
Malone v Metropolitan Police Commissioner [1979] Ch 344; [1979] 2 All ER 620.
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44.
R v United Kingdom, ECHR, Case 6/1986/104/152.
James Munby, QC and Edward Fitzgerald for the mother.
Gordon Murdoch for the daughter.
Jean Ritchie, QC and Derek Holwill for the father.
MR JUSTICE EASTHAM.On 10 June 1992 an originating application was issued by the mother in which she named as two defendants her daughter as the first defendant and her former husband, [the father] as the second defendant. By that originating summons she sought a declaration that it was necessary in the best interests of the daughter that her mother, the plaintiff, should have regular access to her including staying access at regular intervals for the purpose of maintaining and fostering their relationship with one another and that the mother can lawfully enter the premises where the daughter was living to take the daughter with her for the purposes of day time or overnight access at such intervals or for such periods as are necessary in the daughter's best interests and which the court hereafter directs. Then there is another request for a declaration that the father may not lawfully hinder, prevent or obstruct the enjoyment of access by the mother, his former wife, to their daughter, for such purposes at such times and for such periods as the court may direct, and finally that there should be liberty to apply for the purposes of implementing any order made by the court.
The situation is that the daughter was born on 8 June 1969 and she has therefore achieved her majority in the sense that she is over 18. However, she is severely mentally handicapped and she is described in the heading of the originating summons as a patient suffering under disability...
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