The distinction between the court’s ‘custodial’ and ‘protective’ jurisdictions was recognised. The case concerned the ordering of blood tests with a view to determining the paternity of a child involved in divorce proceedings. This was not a matter of upbringing in which the child’s interests (which might well be prejudiced by a finding that he was illegitimate) were paramount. (Lord MacDermott) ‘The duty of the High Court as respects the welfare and affairs of infants falls into two broad categories. There is, first of all, the duty to protect the infant, particularly when engaged or involved in litigation. This duty is of a general nature and derives from the Court of Chancery and to some extent also, I believe, from the common law courts which were merged along with the Court of Chancery in the High Court of Justice by the Judicature Act 1873. It recognises that the infant, as one not sui juris may stand in need of aid. He must not be allowed to suffer because of his incapacity. But the aim is to ensure that he gets his rights rather than to place him above the law and make his rights superior to those of others. The Official Solicitor, however, relied on something more than the protective jurisdiction. He relied upon what is commonly referred to as the ‘custodial jurisdiction’ – the second of the broad categories which I have mentioned already. This is an aspect of the prerogative and paternal jurisdiction of the former Court of Chancery. It is derived mainly from the administrative functions of the Court of Chancery in which that court had to make a choice between conflicting claims as to the custody and upbringing of the infant or the management of his affairs, or to determine the course to be taken in such matters even when not in actual dispute.’ (Lord Hodson) ‘In custody cases the child’s welfare is the governing consideration when all the relevant facts, claims and the wishes of the parents are taken into account. I am not persuaded that the position is the same where a paternity issue has to be tried. True that, as in all cases where infants are concerned, the court will see that the infant is protected. . . . The court in ordering a blood test in the case of an infant has, of course, a discretion and may make or refuse an order for a test in the exercise of its discretion, but the interests of persons other than the child are involved in ordinary litigation. The infant needs protection but that is no justification for making his rights superior to those of others.’
(Reid) ‘But even if one accepts the view that in ordering, directing or permitting a blood test the court should not go further than a reasonable parent would go, surely a reasonable parent would have some regard to the general public interest and would not refuse a blood test unless he thought that would clearly be against the interests of the child.’ (Sir Thomas Bingham MR) ‘I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect. It should certainly not be disregarded or lightly set aside. But the role of the court is to exercise an independent and objective judgment. If that judgment is in accord with that of the devoted and responsible parent, well and good. If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment. That is what it is there for. Its judgment may of course be wrong. So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can.’
Judges:
Lord Hodson, Lord MacDermott, Lord Reid
Citations:
[1972] AC 24
Jurisdiction:
England and Wales
Cited by:
Cited – Ms B v An NHS Hospital Trust FD 22-Mar-2002
The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make . .
Cited – Re S (A Child) CA 10-Jul-2003
The mother of the child on behalf of whom the application was made, was to face trial for murder. The child was in care and an order was sought to restrain publiction of material which might reveal his identity, including matters arising during the . .
Cited – In re S (A Child) (Identification: Restrictions on Publication) CA 10-Jul-2003
An order was sought to protect from publicity a child whose mother faced trial for the murder of his brother. The child was now in care.
Held: The court must balance the need to protect the child with the need for freedom of the press. The . .
Cited – A and D v B and E FD 13-Jun-2003
In two separate actions, fathers with parental responsibility sought orders requiring the mothers of their children to ensure they received the MMR vaccine. Each mother objected, having suspicions as to the safety of the treatment. Specific issue . .
Cited – Alexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .
Cited – Alexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – E v Channel Four, News International Ltd and St Helens Borough Council FD 1-Jun-2005
The applicant sought an order restraining publication by the defendants of material, saying she did not have capacity to consent to the publication. She suffered a multiple personality disorder. She did herself however clearly wish the film to be . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Lists of cited by and citing cases may be incomplete.
Children, Torts – Other, Health Professions
Updated: 12 May 2022; Ref: scu.184558