Judge: High Court (Lieven J)
Citation:  EWHC 2498 (Fam)
The local authority, Croydon, brought proceedings under the inherent jurisdiction where they had become concerned about a husband (KR) living in his wife (ST) in what could be characterised as highly dysfunctional circumstances. KR was a 59-year-old man, who was seriously disabled having suffered a life changing brain injury in 2004 after an attack. He had right sided hemiplegia, brain injury and epilepsy. He was unable to self-mobilise, was confined to a wheelchair and only has movement in one arm. He was in need of fairly constant care and is completely dependent on those who care for him. KR had been assessed as having capacity to make decisions about residence and care; which was never in issue throughout the proceedings. The couple had a history of domestic violence (the husband had once attacked his wife with a knife) and KR had previously been addicted to heroin. KR had been diagnosed with bipolar affective disorder and emotionally unstable personality disorder. It was alleged that KR had a long and ongoing problem with alcohol misuse. They lived together in a one bedroom flat (with KR sleeping on the sofa) and the local authority provided regular care visits. Professionals became increasingly concerned: carers could not always access the property for care visits, ST was sometimes said to leave KR by himself in the property and there were concerns that the couple were being preyed upon by local criminals/drug users. The local authority were concerned that not only could ST not keep KR safe, but that she exposed him to harm (e.g. by allegedly being drunk when pushing his wheelchair to the shops).
After KR was admitted to hospital the local authority made a without notice application to the High Court under the inherent jurisdiction for an order preventing ST from removing him from hospital. A week later, KR agreed to move to CP, a nursing home, for a period of respite. At the same time, Williams J discharged the order made by Cohen J (to prevent removal from hospital) and replaced it with an order that ST was not remove KR from CP, and that her contact with him be limited, including it being supervised at all times.
The application came on for a final hearing before Lieven J. The local authority’s primary position was to ask for an order that KR could not live with ST; but that in the alternative he would seek protective orders against ST. On the first day of the hearing the local authority witnesses gave evidence which by the day’s end (a) revealed that the evidence could not sustain the picture painted by the local authority that carers could rarely access the property and (b) included evidence from a social worker that KR’s will was not “overborne” by external factors. On the second day, the local authority applied for permission to withdraw the case, and Lieven J granted their application. However, she went on to give a detailed judgment to address the question of whether making the order sought would have been justified.
In order to do so, Lieven J identified that she needed to address the following questions:
As to (a), Lieven J found that KR was undoubtedly vulnerable in the sense that he was severely disabled and very much within the physical control of his carers. However, he had capacity, and although he had some communication problems he appeared to fully understand what was going on around him, and was able to express his views clearly and forcefully. Lieven J observed (at para 60) that: “[t]he fact that he is physically vulnerable cannot possibly be sufficient to incur the use of the inherent jurisdiction.” As Lieven J noted “[t]here is some evidence that KR’s views as to where he wants to live fluctuate, and may change when he is with or has just been with ST. However, it is important to be careful to distinguish between the entirely natural and common influence that one close family member will have over another, and the “undue influence” or “coercion” identified in SA and DL. If a dysfunctional family relationship is to fall within these principles then the evidence has to show that the vulnerable individual is incapable of making their own decision.”
Whilst Lieven J found that it was possible that KR fell within the scope of the inherent jurisdiction when the initial application was made, by the time the matter came before her KR had been living away from ST for a period of almost 6 months. His evidence was clear in his two witness statements that he wanted to leave the care home and live with ST. The witness statements suggested that he had carefully weighed up the pros and cons of living with ST, and come up with a well thought out position. As Lieven J noted:
Lieven J therefore found that, by the time that the matter came before her, the evidence did not support a conclusion that KR fell within the scope of the inherent jurisdiction as a vulnerable adult or that KR remained under the undue influence of ST to a degree which would justify the use of the inherent jurisdiction.
Lieven J nonetheless went on to consider the question of whether, even had KR fallen within the scope of the inherent jurisdiction, any order should have been made. She had set out the framework earlier in the judgment, starting at paragraph 45, at which she had noted that:
Turning to Article 8 ECHR, and relying upon Hokkannen v Finland (19823/92), Lieven J noted that “the protection of the individual’s autonomy against interference by the State is absolutely central to the present case,” and that the proposed interference with the Article 8 rights of KR and his wife in a marriage of 40 years was colossal. “That does not mean that the State can never separate a married couple,” she continued, “but it must do so with full consideration of the scale of interference in that couples’ rights.”
The question was therefore whether that interference was justified. This turned on whether the interference in KR’s rights was on the facts of the case necessary and proportionate. As she noted “[i]n any case involving an interference with an article 8 right it will be necessary for the Court to consider whether the State has properly had regard to the potential for “less intrusive measures”. Plainly the greater the interference the more closely less intrusive means will need to be scrutinised” (para 51).
On the facts of KR’s case, she found that the Article 8(2) balance came down against making an order:
In the absence of any governing statute, it is extremely difficult for both practitioners and the courts to identify what is, and is not, permissible even to ask for under the inherent jurisdiction. This is therefore an important and helpful case in terms of developing a framework through which decisions can be made as to when to bring applications under the inherent jurisdiction and what orders can appropriately be sought.
We have sought to provide further guidance, and to draw together the strands from recent case-law, in our guidance note on the inherent jurisdiction available here.
Separately, and as a practice point, it is important to highlight Lieven J’s concerns with the way in which the application was presented to court. Three working days before the trial, 1400 pages of background documents were sent to the lawyers for KR and ST. As Lieven J noted:
In this context, it may be of assistance for readers also to note our guide to without notice applications in the Court of Protection (equally applicable to applications under the inherent jurisdiction), available here.
 With thanks to Alexis Hearnden and Stephanie David for permission to draw upon their summary of the case for a seminar given in Chambers.