Re D-R (Contact: Mentally Incapacitated Adult)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Year | 1999 |
| Date | 1999 |
| Court | Court of Appeal (Civil Division) |
Contact – Adult child under disability – Father applying for direct contact with mentally incapacitated adult daughter – Father invoking inherent jurisdiction of court and seeking declaration that contact lawful and in daughter’s best interests – Judge dismissing application – Whether common law presumption of right to contact between parent and adult child – Whether judge erred in not allowing contact – Relevant factors in deciding whether contact in incompetent adult’s best interests.
The father and mother did not marry but lived together for some years before separating in 1987. They had two daughters, the elder of whom was estranged from the father. The younger daughter, L, was born in 1979 and suffered from cerebral palsy and learning disability. The father had contact with L until the mother brought it to an end in 1995. Despite applications by the father to a family proceedings court there was no contact after 1996. The father’s health broke down and it was impossible to conclude proceedings before L reached the age of 18. The father therefore invoked the inherent jurisdiction of the High Court and sought a declaration under RSC Ord 15, r 16 that (i) the mother was acting unlawfully in refusing him direct contact with L; and (ii) it was lawful for him to arrange direct contact in L’s best interests. The mother opposed the application, as did the Official Solicitor on behalf of L. The Official Solicitor obtained an expert psychiatric report on L which concluded that she was not capable of understanding her father’s application, and also an assessment by the principal of the college which L was about to attend that contact would not be in L’s best interests at that time. The father’s application was dismissed on 2 July 1998, the deputy judge of the High Court deciding that although the father had good intentions towards L he was not a significant part of her life, the mother’s continuing hostility was a relevant factor, and in all the circumstances it was not in L’s best interests to allow contact. The father appealed, arguing that the question of contact was governed by common law and there was a right to a relationship between father and daughter which ought to be protected. He contended that the effect of that right was to create a presumption in favour of contact which the judge had failed to recognise and that the judge had erred in accepting the Official Solicitor’s view that there were no advantages to L in contact.
Held – There was no presumption of the right to contact between a parent and an adult child. Where the adult child was under a disability, it became a question of whether contact with the parent was in the adult child’s best interests, and in a case where there was conflict between the family members the best interests of an incompetent adult required the court to look at all the circumstances. The relationship of father and daughter was clearly a relevant factor which had to be weighed in the balance together with all the other relevant circumstances of each individual case, including the history and former relationship, the current situation and the prospects for the future. Moreover, although the implementation of any contact was not strictly relevant to the issue of best interests, the extent to which a father would have an opportunity to have a relationship with his daughter which would be of value to her would to some extent at least depend on her primary carer. In the present case, because of the mother’s hostility there would be real problems in making contact effective. The deputy judge of the High Court had correctly identified the relevant factors and weighed them in the balance in deciding that contact would not be in L’s best interests. He had not been wrong in principle and it was not for the Court of Appeal to second-guess his approach to the exercise of discretion. Accordingly, the appeal would be dismissed.
Per curiam The present case discloses the inadequacy of the procedure under RSC Ord 15, r 16, invoking the inherent jurisdiction of the High Court. Ever since the lapse of the parens patriae jurisdiction over the mentally incompetent on the coming into force of the Mental Health Act 1959 and its successors there has been a huge gap in the non-mental health care of those who cannot care for themselves. To some extent the gap has been bridged by decisions of the courts but that line of authority is a poor substitute for a statutory framework.
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Re R (A Child) (IVF: Paternity of Child)
...of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, [1998] 3 WLR 675, PC. D-R (contact: mentally incapacitated adult), Re[1999] 2 FCR 49, [1999] 1 FLR Ex p Lund (1802) 6 Ves 781, 31 ER 1306. F (adult: court’s jurisdiction), Re[2000] 3 FCR 30, [2001] Fam 38, [2000] 3 WLR 1740, [2000......