Children Act 1989 and declarations

In Re JM (A Child) [2015] EWHC 2832 (Fam) (07 October 2015) Mostyn J dealt with a ten year old child who needed urgent medical treatment, and who seemed to have been returned to Poland by his parents. The judge made the order sought on application by ‘A NHS Trust’ (‘the Trust’) supported by ‘A local authority’ and the child’s guardian. Save for a possible issue over jurisdiction between England and Poland all that was uncontroversial.

As far as I can tell from the report, the issue of procedure for such applications was not raised before Mostyn J. If that is right then Mostyn J’s comments (at §§[20]-[29]) are obiter – ie not binding.  That said the rest of this note goes to those comments. They will be hard to follow in the absence of clear procedural rules (which I deal with later).

Mostyn J’s view is that the Trust should proceed by seeking an order in the Family Court as a ‘Children Act 1989 s 8’ application (see §[26]). However if ‘final binding declarations’ are sought – as here – then application must under CA 1989 s 8 with an application for ‘declaratory relief under the inherent jurisdiction’ (§[27]). (At this point Mostyn J had already given the trust permission to apply under Children Act 1989 s 10(2)(b) (§[20])). He reasons that the inherent jurisdiction route is better for the parents since, he asserts, they will be entitled to legal aid (he does not reflect on the legal aid merits issue if they seek to defend a case so medically sound as this one).

There is no power under the Children Act 1989 to proceed by declaration.

Practical questions

Two immediate practitioner problems arise from this:

  • The source of a court’s power to make declarations
  • How to apply for declaratory relief under Family Procedure Rules 2010

The source of the courts power to grant a declaration is common law. It is explained by Lord Scarman in Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 at 177 etseq, [1985] UKHL 7, [1986] 1 FLR 224 and, more recently, by the Court of Appeal in Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387. Insofar as the High Court has an inherent jurisdiction to make a declaration so too does the Family Court (Matrimonial and Family Proceedings Act 1984 s 31E(1)).

And how to apply? FPR 2010 sets up its range of application as did the mediaeval civilian lawyers: as actions on the case which must be moulded by the pleader to fit his case. There is no specific rule which provides an originating summons procedure, save a combination or FPR 2010 Pts 8 and 19; and that is the route the practitioner must take.

The applicant seeks relief under the inherent jurisdiction of the court over children. Once that threshold is achieved Mostyn J’s analysis becomes muddled: the relief is covered by the inherent jurisdiction. Children Act 1989 s 8 may help to provide the form; but as he says (§[25]) ‘the architects’ of CA 1989 did not have in mind an application by a NHS Trust. I suspect they did; and they left it – as Mostyn J should have done – to the inherent jurisdiction. (I am afraid I have not checked those Law Commission booklets written by Commissioner Brenda Hoggett (now Lady Hale), to make sure what the Law Commissioners did have in mind on this.)

Generalia specialibus etc

Oh and I checked the generalia specialibus non derogant [the general cannot derogate from the special] point Mostyn J picks up at §[22] from Effort Shipping Co Ltd v Linden Management SA [1998] AC 605 per Lord Cooke at 627. He was talking about rules in relation to shipping contracts… No wait, it’s a nice point. If Parliament has made specific provision, a general principle cannot override it:

If, however, there were any prima facie conflict between the general provisions of article IV, r. 3 [of the Hague Rules] and the special provisions of article IV, r. 6, it would seem to be almost a classic case for applying the maxim generalia specialibus non derogant [the general cannot derogate from the special]. This would not be to treat article IV, r. 6 as free-standing: quite the reverse. It would be to conclude that on a fair reading of the Rules as a whole article IV, r. 6 must take priority over article IV, r. 3. Further reasons supporting that conclusion as representing the likely intention of the drafters have been given by my noble and learned friends, and it would be superfluous to repeat them. I would add only that the generalia specialibus maxim, as its traditional expression in Latin indeed suggests, is not a technical rule peculiar to English statutory interpretation. Rather it represents simple common sense and ordinary usage. It falls within the category explained as follows in Bennion’s Statutory Interpretation, 2nd ed. (1992), at p. 805:

‘A linguistic canon of construction reflects the nature or use of language generally. It does not depend on the legislative character of the enactment in question, nor indeed on its quality as a legal pronouncement. It applies in much the same way to all forms of language … Linguistic canons of construction are not confined to statutes, or even to the field of law. They are based on the rules of logic, grammar, syntax and punctuation; and the use of language as a medium of communication generally.’

The problem with Mostyn J’s citation of Effort Shipping is that he cannot himself make up his mind (see §§[24]-[26]) whether the statutory, or the common law, route is correct. I say common law; but Mostyn is muddled on that too. And the passage he cites from Family Court Practice 2015 (page 1762 cited in §[20]) is only looking at the issue in the context of care proceedings.

Where a High Court judge expresses a half-formed opinion on a subject where he has not – I suspect – heard argument, it is surely unhelpful? This is so especially where he does not finish the job by giving clear procedural guidance to those who must issue these applications often at very short notice indeed.

The diffidence and good humour with which Lord Scarman traversed the procedural territory in Gillick ([1986] 1 AC 112 at 177) is in contrast with that of Mostyn J; and Lord Scarman’s words still merit attention as to the private rights to use the common law declaratory powers of the High Court. A hospital may be the applicant; but the private rights of a child – ie private law – are in issue.