Judgment of Lieven J emphasises proper limits of the inherent jurisdiction

Judgment of Lieven J emphasises proper limits of the inherent jurisdiction


CategoryNews Author Alexis Hearnden, Peter Mant Date

In a judgment handed down yesterday, 25 September 2019, Lieven J provided important guidance on the proper limits of the inherent jurisdiction.

The local authority sought orders to forcibly separate a husband and wife on grounds of the husband’s vulnerability. The application was withdrawn on the second day of the final hearing but a full judgment was given on the applicable principles.

The judge emphasised that physical disability and complex family relationships alone are not a sufficient basis for invoking the inherent jurisdiction, holding that:

  • the principles articulated in the MCA about assumptions about capacity not being made on the basis simply of age and physical disability apply equally strongly when it comes to determining whether an individual is “vulnerable” within the meaning of SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867;
  • 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 the leading cases;
  • 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

She also held that preventing a married couple from living together was a “colossal” interference with their rights under Article 8(1) and any interference with a person’s family life through exercise of the inherent jurisdiction has to be justified under Article 8(2). This requires the state to consider “less intrusive measures” before an application is made.

Alexis Hearnden acted for the wife, ST.

Peter Mant acted for the husband, KR.

Please click here to see the full judgment.


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