Judge: Sir Nicholas Wall, President of the Family Division
Citation:  EWHC 2675
Summary: The President has very recently given interesting and useful guidance for local authorities as to what steps might be appropriate where safeguarding concerns exist in relation to adults who have capacity but are thought to be subject to undue influence.
The case concerned an elderly couple who the local authority considered to be at risk of physical, emotional and financial abuse from their son, who lived with them. The local authority took the view that the couple did not lack capacity. The local authority had therefore rejected making an application under the MCA. It had also considered and rejected the possibility of an ASBO, or an order under s.153A of the Housing Act 1996. That left two possibilities for obtaining the court’s assistance to protect the parents: an order under the inherent jurisdiction, or an order under s.222 Local Government Act 1972. The President concluded that an order was warranted and could be made under either.
The court’s inherent jurisdiction was defined broadly in Re SA (Vulnerable Adult with capacity: Marriage)  EWHC 2942) Fam  1 FLR 867 as extending to individuals with capacity who are prevented from making free choices due to undue influence, coercion or for some other reason. In the authors’ experience, the Official Solicitor and the courts have not been keen to invoke the inherent jurisdiction in cases outside those of arranged marriage (as in SA). The President, however, was satisfied that on the evidence provided by the local authority, it was appropriate to make an order requiring the Official Solicitor to carry out an investigation to inform the court about the situation and whether the protective orders sought by the local authority were for the benefit of the parents, a procedure first created in Harbin v Masterman  1 Ch. 351. An order was also made at the without notice hearing preventing the son from acting unlawfully. No details of the order were given, but no doubt they related to his matters of concern identified by the local authority including attempting to transfer ownership of the house to the son, persuading his mother to enter a care home, and preventing carers from visiting.
Comment: The President noted that the case was ‘highly unusual’, which in the view of the authors, is a surprising comment. There are many safeguarding cases involving adults with capacity in which local authorities wish they had the power to take further steps to protect people, and confirmation that the decision in SA and the LGA 1972 can be relied on may well lead to further applications of this sought in the near future. The as yet unanswered interesting (and difficult) question is the extent and nature of the relief the court will grant in relation to a capacitated adult under the inherent jurisdiction once full details of the case are known and the son has been given the opportunity to present his case. It is suggested by the authors that the court is likely to tread very carefully in making orders that go beyond assisting the vulnerable adults to assert their capacity.