Family

Jurisdiction - declaratory relief - adult lacking capacityRe F.

(Adult: Court's Jurisdiction): CA (Dame Elizabeth Butler-Sloss, P, Thorpe and Sedley LJJ): 26 June 2000

The local authority applied for a declaration under the inherent jurisdiction enabling them to direct where T, a girl aged 18, should live and to direct and supervise her contact with her natural family.

The Court of Appeal had already decided that T did not come within the guardianship provisions of the Mental Health Act 1983, and that wardship did not apply as T was over 18.

The judge had ruled, as a preliminary issue of law, that the court had jurisdiction to hear an application for declaratory relief where an adult lacked capacity to make decisions as to the future and was at risk of harm.

T's mother appealed.

Richard Gordon QC and Paul Bowen (instructed by Goodman Ray) for the mother.

Nigel Pleming QC and Fenella Morris (instructed by Director of Legal Services) for the local authority.

Roger McCarthy QC and Nicholas O'Brien (instructed by Hopkin Murray Beskine on behalf of the Official Solicitor) for the Official Solicitor.

Held, dismissing the appeal, that since mental health legislation did not cover the day-to-day affairs of the mentally incapable adult and since it had been recognised that the doctrine of necessity might properly be invoked side by side with the statutory regime, the jurisdiction of the High Court to grant relief by way of declarations was not excluded by the Mental Health Act 1983; and that, where an adult lacked capacity to make decisions as to their future and there was a risk of possible harm, the court had power under the inherent jurisdiction and in the best interests of that person, to hear the issues involved and to grant the necessary declarations.