DECLARATORY RELIEF IN FAMILY 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.”

dbfamilylaw

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…

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