The case asked how cases involving disputes as to the care of children, and of the treatment of adults claimed to be mentally incompetent. Where the issues were solely ones of public law, then they should be heard by way of judicial review in the QBD. Where any private law issues arose, they should be heard in the Family Division. The crucial distinction derived from the identity of the decision-maker whose decision was being scrutinised. If the decision was that of the child, or those acting on the child’s behalf, or the allegedly mentally incompetent adult, then the central issue was the best interests of the child or patient, and the Family Division was appropriate. If the decision was that of the hospital or otherwise, it may be a public law decision, and the issue was as to the statutory function exercised..
Judges:
Mr Justice Munby
Citations:
Times 11-Mar-2002, Gazette 14-Mar-2002
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Practice Note (Family Division: Incapacitated adults) FD 2-Jan-2002
Proceedings which invoked the jurisdiction of the High Court to grant declarations as to the best interests of incapacitated adults were civil proceedings to which the Civil Procedure Rules applied. Although not assigned to any division, having . .
Cited – A v Liverpool City Council HL 1981
Though the child was subject to a care order in favour of the local authority, a wardship order was sought.
Held: Once a care order had been made, whether final or interim, the court was effectively faced with a choice and not a choice which . .
Cited – In re W (a Minor) (Wardship: Jurisdiction) HL 1985
Relatives of a child who was in local authority care disagreed with the authority’s plans for her future.
Held: They could not challenge them by seeking a determination on the merits in wardship.
Lord Scarman referred to Liverpool v A and . .
Lists of cited by and citing cases may be incomplete.
Judicial Review, Children, Health, Civil Procedure Rules
Updated: 08 May 2022; Ref: scu.167744