This was an application without notice by the local authority against, in the main, DL who is the son of the other two defendants (RL and ML). Mr and Mrs L are an elderly couple who live with their son in a home owned by Mr L. Mrs L was physically disabled and in receipt of community care support by way of direct payments and daily visits from carers. The local authority was satisfied that both Mr and Mrs L had capacity to manage their affairs and to determine the extent of their relationship with their son. DL was reported by the local authority to have to a history of aggressive behaviour towards his parents, including physical violence catalogue from 2005. He was also thought to be very controlling of his parents’ movements, including preventing carers from access Mrs L and was thought to be putting pressure on his father to transfer the property into his name and move Mrs L into a care home against her wishes. The local authority wished to take action to protect Mr and Mrs L but had concluded that they would be unable to secure appropriate protection under the criminal law or via the Court of Protection under the Mental Capacity Act 2005. It had also considered (and rejected) an application for an anti-social behaviour order under the Crime and Disorder Act 1998 or making an application under section 153A of the Housing Act 1996. It was also satisfied that, although Mr and Mrs L were capable of issuing proceedings to protect themselves, it did not believe that they would do so through fear that this would cause irretrievable breakdown in their relationship with DL. The local authority therefore invited the Court to make an order preventing DL from acting unlawfully toward his parents either under the High Court’s inherent jurisdiction or powers conferred by s222 of the Local Government Act 1972.
The matter was heard by the President of the Family Court, Sir Nicholas Wall. In respect of the application under the inherent jurisdiction the local authority sought to put forward a case that despite the introduction of the Mental Capacity Act 2005 their remain a lucuna in the law for those who may not be incapacitated by way of mental disorder but who otherwise were unable to protect themselves. The local authority referred to the decision of Munby J as he was then in Re SA (Vulnerable Adult with capacity: Marriage) [2005], which concerned the making of various orders preventing family members from seeking to remove an adult from the jurisdiction and arrange for her marriage. Within that case Munby J had commented “the inherent jurisdiction is no longer correctly to be understood as confined to cases where a vulnerable adult is disabled by mental incapacity from making his own decision about the matter in hand and cases where an adult, although not mentally incapacitated, is unable to communicate his decision. The jurisdiction, in my judgment, extends to a wider class of vulnerable adults. … in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either: (i) under constraint; or (ii) subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.”
As the statutory service charged with taking a lead to safeguard vulnerable adults it was accepted that the local authority would have a “genuine and legitimate interest in the welfare of the individual in question” but also had to demonstrate that the proposed steps it sought was a legitimate interference with the defendants’ rights to respect of private and family life protected by article 8 of the ECHR. The local authority were able to demonstrate that they had considered their duties to the defendants under article 8 and cited Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] , as justification for the orders it sought in this instance. It made it clear that as this was an ex parte application it did not seek to remove DL from the family home, only to prevent him from acting unlawfully and that therefore he would suffer no prejudice as a result of the orders. However within this judgment the President, again quoting Munby J, made clear that the court would only be “entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk.” Having been satisfied that the tests set out by Hedley J in Re Z (Local Authority: Duty) [2004] , were not applicable in this case agreed to grant the relief sought by the local authority.
The Court went on to consider whether the local authority could rely on the powers set out within s222 LGA 1972 for such proceedings. Under this provision a local authority where it considers it “expedient for the promotion of the interests of the inhabitants of their area … may prosecute or defend or appear in any legal proceedings and, in the case of any civil proceedings, may institute them in their own name, …” In relation to this power the local authority sought to establish that the underlying purpose of s222 LGA was to vest in a local authority that power that, prior to s222 coming into force, was vested only in the Attorney General in common law to enforce public rights. This had been put forward in Birmingham CC v Shafi [2008]. In that case the Court of Appeal had discharged an injunction where similar relief was capable of being obtained by means of the appropriate use of a criminal procedure (an ASBO). However, the local authority argued that the circumstances in this case were “exceptional” because the criminal law did not offer a proper protective basis for Mr and Mrs L given their reluctance to use it. Further the local authority argued that it should be able to rely on powers conferred by s222 LGA to prevent interference by DL with its statutory obligations to Mr and Mrs L under the relevant community care legislation. Broadmoor v Robinson [2000] applied.
Finally the Court considered whether it was necessary for the application to be without notice and whether the orders being sought would prejudiced DL or interfere with his right to apply and to have the orders set aside in his locale. Satisfied that they did not the orders were granted.