Best interest – capacity – judicial review – appropriate forum
In A v A Health Authority and others, the High Court sought to clarify the proper relationship between the Family Division and Administrative Court as regards claims involving decisions about the ‘best interests’ of children or incompetent adults. Cases which, although they concerned the best interests of a child or incompetent adult, involved only issues of public law were properly litigated in the Administrative Court. Private law cases about the best interests of a child or an incompetent adult were to be litigated in the Family Division, in accordance with the Practice Direction ‘Declaratory proceedings concerning incapacitated adults’ medical & welfare decisions’.
However, the crucial question in the final analysis was not whether the proceedings were better brought by way of judicial review in the Administrative Court or under the inherent jurisdiction in the Family Division; rather the crucial question was what test was to be applied as a matter of substantive law when, as would usually be appropriate, the matter was in fact proceeding in the Family Division rather than in the Administrative Court. To identify the operative rule of substantive law, it was necessary to analyse the true nature of the issue(s) before the court. If the task facing the judge was to come to a decision for and on behalf of a child or incompetent adult, then the welfare of that person had to be the paramount consideration. If the task for the judge was to review the decision of a public authority taken in the exercise of some statutory power, then the governing principles were those of public law and for the Administrative Court.