Judge: Theis J.
Citation:  EWHC 1022 (Fam)
Summary: This is the second decision in the case of DL, which readers may recall concerned an ex parte application by a local authority under the inherent jurisdiction seeking orders preventing the son of an elderly couple from committing an unlawful acts against them. The orders were granted by the President of the Family Division in October 2010. This hearing, before Mrs Justice Theis, considered whether there was any proper lawful basis for the use of the inherent jurisdiction on the basis of certain assumed facts (many of which were disputed by the son and his mother (who remained the only other parties to the proceedings, as the father had subsequently been found to lack capacity and was therefore subject to the MCA 2005).
In short, the judge found that the inherent jurisdiction had survived the introduction of the MCA 2005 and could be used in certain limited circumstances:
“22. Having considered the detailed written and oral submissions, I have come to the conclusion that the inherent jurisdiction can still be invoked in cases such as this and that what has been termed the SA jurisdiction does survive the MCA and the Code. I have reached this conclusion for the following reasons:
(1) It is accepted prior to the implementation of the MCA that the inherent jurisdiction extended to cases that went beyond issues relating to mental capacity. In appropriate cases, having balanced the competing considerations, the jurisdiction was invoked and exercised with the court making declarations and protective orders (SA supra).
(2) It is accepted that the essence of this jurisdiction is to be flexible and to be able to respond to social needs.
(3) The Parliamentary consideration, prior to the passing of the MCA, did not expressly seek to exclude the court’s inherent jurisdiction that had developed at the time. The consideration it did give to adults found to have capacity (sometimes after investigation) did not expressly exclude the court exercising its inherent jurisdiction in relation to adults as described in SA. The SA inherent jurisdiction is a protective jurisdiction that extends beyond dealing with issues on mental incapacity.
(4) Each case will, of course, have to be carefully considered on its own facts, but if there is evidence to suggest that an adult who does not suffer from any kind of mental incapacity that comes within the MCA but who is, or reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors they may be entitled to the protection of the inherent jurisdiction (see: SA (supra) para ). This may, or may not, include a vulnerable adult. I respectfully agree with Munby J in SA at para  “The inherent jurisdiction is not confined to those who are vulnerable adults, however that expression is understood, nor is a vulnerable adult amenable as such to the jurisdiction. The significance in this context of the concept of a vulnerable adult is pragmatic and evidential: it is simply that an adult who is vulnerable is more likely to fall into the category of the incapacitated in relation to whom the inherent jurisdiction is exercisable than an adult who is not vulnerable. So it is likely to be easier to persuade the court that there is a case calling for investigation where the adult is apparently vulnerable than where the adult is not on the face of it vulnerable.” In the cases I have been referred to the term „vulnerable adult? appears to have been used to include the SA definition, whether the adult in question is vulnerable or not. Obviously the facts in SA were very different to the case I am concerned with. For example, in this case ML and DL have capacity to litigate but that does not, in my judgment, mean that the inherent jurisdiction should not be available to protect ML, once the court has undertaken the correct balancing exercise.
(5) The continued existence of the SA jurisdiction, following implementation of the MCA, has been re-stated in a number of decisions. Whilst some of the observations may be regarded as obiter (in particular A Local Authority v A (supra) at para ) they have consistently re-affirmed the existence of the jurisdiction. In particular the observations made by Bodey J in A Local Authority v Mrs A (supra) at para , Macur J in LBL v RYJ (supra) para  and Wood J in LB of Ealing v KS (supra) para  […]
(6) I agree with the submissions of Mr Bowen, that the obligations on the State under the Convention and the HRA require the court to retain the inherent jurisdiction, as by refusing to exercise it in principle the court is, in effect, creating a new “Bournewood gap”. Whilst it is correct that the cases to date regarding any positive obligation on the State (including the LA) arising under Article 8 have concerned cases involving children or adults who lack mental capacity that does not mean, in principle, such positive duties cannot arise in other circumstances. There may be a heightened positive duty in cases concerning children and adults who have mental incapacity. Much will depend on the circumstances of each case and what the proportionate response is considered to be by the LA.
(7) I agree with the submissions of Miss Lieven Q.C. (as supported by the observations of Bodey J in A Local Authority v Mrs A supra para 79 and Macur J in LBL v RYJ supra para 62) that in the event that I found that the jurisdiction does exist that its primary purpose is to create a situation where the person concerned can receive outside help free of coercion, to enable him or her to weigh things up and decide freely what he or she wishes to do. That is precisely what Munby J ordered in SA. There obviously needs to be flexibility as to how that is achieved, dependent on the facts of each case. That does not mean it can be covered by s 48 MCA, as Miss Lieven Q.C. sought to suggest at one stage in her oral submissions as, in my judgment, s 48 by its express terms is only intended to cover the interim position pending determination of an application. As Munby J observed in SA (para ) in some circumstances it will be necessary to make orders without limit of time.
(8) The mere existence of the jurisdiction does not mean it will always be exercised. Each case will have to be considered on its own facts and a careful balance undertaken by the court of the competing (often powerful) considerations as to whether declarations or other orders should be made. As Miss Lieven Q.C. points out the assumed facts in this case are not accepted by DL and even if they are one of the important considerations for the court to consider are the views of adults concerned; they do not support the orders being sought by the LA. In addition, the terms of the orders being sought in this case are likely to require very careful scrutiny.
Comment: This decision was not, in the view of the authors, a surprising one, in light of the various recent cases cited by Mrs Justice Theis in which a similar conclusion has been reached. It does however provide a useful and thorough summary of the relevant authorities and some insight into the way applications under the inherent jurisdiction are likely to be approached by the courts.