RE FD (INHERENT JURISDICTION: POWER OF ARREST) (2016)

Keywords: Power of arrest, Injunctions, Inherent Jurisdiction, Court of Protection

Background

FD was a vulnerable 18 year old woman who had been assessed as having a mild learning disability and a mixed disorder of conduct and emotions including a chronic and relapsing history of Avoidant/Restrictive Food Intake Disorder and a history of Substance Use Disorder, including dependence on heroin.

The LA had previously intervened when FD was aged 17. The local authority had obtained leave from the court (as required by s.100(3) Children Act 1989) to apply for exercise of its inherent power in wardship. FD had been made a ward of court and the court had given permission for her to undergo psychiatric and capacity assessments. These assessments had found her to have little insight into her need for support and concluded that she lacked capacity to make informed decisions about her treatment, finances and relationships. In particular, the assessment at age 17 found that she did not fully understand the potential and significant risks posed to her through her relationship with GH (a 29 year old man, known to be a drug user and with a history of violence). At the time FD told social workers that GH forced her to take drugs, that he cut her on her arms, legs and heels, that he took money and food from her on a regular basis. The local authority also had concerns about FD’s father, AD, who, she reported, had introduced her to heroin and was known to have previously taken money from her. Within the wardship proceedings, the local authority had applied for and was granted  an injunction restraining GH from making contact with FD. That injunction remained in force until FD’s 18th birthday. The local authority did not apply for a power of arrest to be attached to the injunction at that time.

As FD’s 18th birthday approached, the local authority anticipated the need for continued protection for her and applied to the Court of Protection for declarations regarding capacity to litigate, make decisions with regard to residence, care and contact. The LA also applied for injunctions against both GH and AD restraining them from contacting FD or from going within a half mile radius of her home and asked that a power of arrest be attached to the injunction against GH. The court of protection granted interim injunctions including the power of arrest and ordered an expert assessment of FD’s capacity.

However, the psychiatrist who carried out the fresh capacity assessment reached a different conclusion from that obtained when FD was 17. She concluded that although FD still lacked capacity to make decisions about her finances, she did have capacity to instruct her solicitor and to make decisions about her care, residence and relationships. In particular, she was of the opinion that FD demonstrated the ability to weigh-up the positives and negatives of relationships, including with GH. The local authority accepted the psychiatrist’s  view as to FD’s capacity. The Court of Protection  agreed and appointed a local authority deputy to manage FD’s finances, but otherwise issued declarations stating that FD had capacity to conduct proceedings and make decisions as to residence, care and contact with others.

Nevertheless, the psychiatrist had also concluded that FD was extremely vulnerable and, although she had some insight into these issues, her emotional difficulties left her extremely susceptible to and largely unable to resist the influence of both GH and her father.  Consequently, she felt that, despite FD having capacity, GH could adversely affect FD’s ability to make decisions.

With the Court of Protection’s power to sustain injunctions against GH and AD having been negated by the declaration that FD had capacity, the LA therefore applied to the High Court under its inherent jurisdiction for replacement injunctions to protect FD and again sought a power of arrest to be attached to the injunction against GH.

Power of arrest

As a result, the High Court considered whether its inherent jurisdiction allowed it to authorise a power of arrest. Under its inherent jurisdiction, the High Court has broad discretion to issue injunctions to protect adults who have capacity to make their own decisions but are, nevertheless, vulnerable (DL v A Local Authority and others [2012]). Bellamy J summed up the question the court was forced to consider:

“It is also now well-established that the essence of the court’s inherent protective jurisdiction is to be flexible so as to be able to respond to social needs and changing social values. The question that arises in this case is whether that flexibility extends to provide jurisdiction to attach a power of arrest to an injunction granted under the court’s inherent protective jurisdiction.” [para. 24]

The court considered the analogous situation of its powers to protect children in wardship cases. Bellamy J quoted this crucial passage from the judgement of Ormrod LJ in Re G (Wardship) (Jurisdiction: Power of Arrest) (1983) pointing to:

“a fundamental difference between the power to make orders and the power to enforce those orders. The powers of the court to enforce its orders in wardship are the ordinary powers that the court has to enforce their orders. In other words, we have rules of the court which provide the remedies which are available; the main one here being, of course, an application for committal to prison for contempt of court… But I am unable to see how, without any statutory authority, however desirable it might be for the court to have the power, the court can assume a power of enforcement of its orders which is not provided for in the ordinary rules of court in relation to enforcement of orders.”

In arguing that the court did have the power to attach a power of arrest, the local authority cited Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867, in which Munby J had attached a power of arrest to an injunction to protect a vulnerable adult. However, Bellamy J concluded that the power to do so was statutory, from Part IV Family Law Act 1996, which was in force at the time of that case. That statutory power to attach a power of arrest to a non-molestation injunction was removed in 2007 by an amendment to Part IV Family Law Act 1996 (under the Domestic Violence, Crime and Victims Act 2004). Consequently, the statutory source of the power to attach a power of arrest no longer existed.

So, although the High Court’s inherent jurisdiction provides a broad ranging power to grant injunctive relief, it provides no special powers for enforcement and injunctions can be enforced only through proceedings for contempt of court where no specific statutory power exists.

Although this case concerned the High Court’s inherent jurisdiction in relation to capacitous vulnerable adults, it appears that essentially the same situation exists in the Court of Protection. Bellamy J went on to comment that, in his view, his interim injunctions in this case (issued in the guise of the Court of Protection) were mistaken, and that the Court of Protection also lacks the power to attach a power of arrest to a non-molestation injunction.

Legal Aid

FD had been legally represented at previous hearings in this case, having been entitled to legal aid. However, in the current and future hearings legal aid had been denied on the grounds that FD had capital exceeding the threshold and the Legal Aid Agency had refused to use its discretion to decide otherwise. FD had, through no fault of her own, received a back payment of £12,000 for a benefit which, had it been paid weekly, would not have prevented her qualifying for legal aid. The LA, as FD’s deputy, was reluctant to make a best interests decision to pay the assessed contribution of £5,000 on her behalf, given her opposition to doing so.

The court expressed concern about the lack of representation for FD, especially given that she opposed the LA’s application for the injunctions and disputed that she was a ‘vulnerable adult’. However, the court was only able to invite the Legal Aid Agency to reconsider its decision as a matter of urgency.

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