EWCOP 19
X was a 20 year old woman with autism who received 24 hour care at a supported living placement.
In September 2019 the staff at her placement became very concerned that X was in contact with several men via social media and dating websites.
A number of these men had come to her placement and engaged in sexual relations. Only one of the men was actually identified, referred to here as ‘B’.
In January 2020 the Local Authority applied for an injunction against B to stop him from visiting X’s placement (pursuant to s.16(5) and s.48 of the Mental Capacity Act 2005), and then in February they applied for an injunction to stop ‘unknown persons’ attending her placement.
The Court of Protection Judge decided that X lacked capacity in regard to making decisions about her use of social media and internet use, and that it was in her best interests not to have any further contact with B, and therefore granted the injunction.
Issues arose regarding the Court of Protection’s power to grant injunctions. The judge discharged the original injunction, and then made an injunctive order against B in the same terms, but pursuant to the jurisdiction of the High Court.
The Judge then sought to determine whether the Court of Protection had the power to make injunctive orders and, if so, from which provisions of the Mental Capacity Act 2005.
What was found
The Judge stated that the Court of Protection ‘does indeed have the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders.’
In deciding that, he considered;
- “s.47(1) of the 2005 Act is drafted in wide and unambiguous terms”
s.47(1) states that “The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court”.
- “it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the Senior Courts Act 1981 to grant injunctive relief”
The High Court can make interlocutory injunctions by virtue of the provisions of s.37(1) of the 1981 Act, and s.47(1) highlights that the CoP has the same powers, rights privileges and authority as the High Court. Therefore, should have the power to grant an injunction.
- s. 48 of the 2005 Act states that the court has the power to make interim orders or directions … if it is in P’s best interests to do so.
- s.17(1)(c) of the 2005 Act permits the court to “prohibit contact between a named person and P”, which further supports the power to make injunctive orders by the CoP.
- it is further fortified by the terms of ss. 16(2) & (5) of the 2005 Act.
The Judge stated that “the provisions of s.16(5) are drafted in wide terms and enable the court to ‘make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)’”
- finally, the 2017 Rules, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.
The Judge was further persuaded that the CoP had the power to grant injunctions as both Hayden J. and Cobb J. were of the same view;
“Counsel for the Official Solicitor referred me to the three authorities set out above. In the case of MASM (above) paragraph Hayden J. said, “The Court of Protection’s powers of enforcement are extensive. The Court has in connection with its jurisdiction the same powers, rights and privileges and authority as the High Court (COPR 2007, R89) which means that it may find or commit to prison for contempt, grant injunctions where appropriate, summons witnesses when needed and order the production of evidence. (COPR 2007, part 21 makes further provision RR183-194). The relevant practice directions (PD21A) and “practice guidance notes” deal with Contempt of Court, Applications for enforcement may also be made; the CPR relating to third party debt orders and charging orders are applied as are the remaining rules of the Supreme Court 1965 in relation to enforcement of judgments and orders and writs of execution fieri facias (writs and warrants of control, post April 2014)”.
And later at paragraph 39 he said, “Section 16 it must be noted is framed in terms of the court making ‘orders’ and ‘decisions’ rather than the ‘declarations’ contemplated by Section 15. In this area Section 15 largely replaces the High Court’s Inherent Jurisdictional powers under which aegis the Family Division, prior to the Mental Capacity Act 2005, made declarations in respect of mentally incapacitated adults in regard to medical treatment and personal welfare.”
In the case of Re Leslie Whiting (above) Hayden J. made the following observations at paragraph 20, “The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny.”
Earlier in his judgment at paragraph 11 he had noted that, “On 28th November, the case was transferred to the High Court because, as I understand it, it was thought that the offices of the Tipstaff might be required. That is, of course, concerned with the apparatus of enforcement but it is perhaps important to note that section 47(1) of the Mental Capacity Act 2005, which relates to the general powers and effect of orders et cetera made in the Court of Protection provides: “(1) The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.””
The factual background to this case and early history of the orders made in this case are set out by Hayden J. in paragraphs 7 and 8 of his judgment,
“Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009. The details of that conviction are not in my papers but I have been told that it is a sexual offence relating to exploitation of a vulnerable adult. Mr Whiting made it clear to the court that he did not want to play any part in the proceedings when the Court of Protection was looking at the issues that I have outlined as in its focus. He declined to attend. Nonetheless, in his absence, his role in WAJ’s life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.
On 21st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows: “
Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order.”
He concluded the judgment at paragraph 20 with the following words,
“Having here found the fourth breach to be proved, I propose to take no action in respect of it. A year has passed since it occurred and there are no subsequent allegations. To that extent, the injunction appears ultimately to have been successful. I do, however, intend to continue the injunction in the terms made by District Judge Rogers for a further twelve months, with liberty to Mr Whiting to apply to discharge.”
In the case of North Yorkshire County Council (above) Cobb J. had made injunctive orders against an individual who posed a risk of harm to the vulnerable incapacitous adult who was the subject of the application in the Court of Protection. The factual matrix is set out in paragraphs 2 & 3 of the judgment of HHJ Anderson, before whom committal proceedings were listed for alleged breaches of the injunctions,
“The first of those injunctions was made without notice to George Elliot. The injunction order was set out in clear terms. The injunction prohibited him from contacting or attempting to contact the young woman who is the subject of these proceedings whether directly, face-to-face or indirectly by any means whatsoever including telephone, texting or messaging, email, Skype, FaceTime or through any social media platform including, but not limited to, WhatsApp, Twitter, Instagram or Snapchat”
At the time of that hearing, George Elliot was in prison following an alleged breach of a sexual harm protection order. The second injunction was made in his presence at an on-notice hearing, again before Cobb J. That hearing took place on 21 January 2019. Mr Justice Cobb amended the terms of the first injunction to make them more precise. It seems that the aim of the judge was to make it clear to Mr Elliot that the injunction included a prohibition on any communications even if initiated by the young woman at the heart of this case. So, therefore, an injunction was made in Mr Elliot’s presence prohibiting him from communicating with or attempting to contact her, whether directly, face-to-face, et cetera. The word “communicating” was put in the injunction in place of “contacting”
At paragraph 10 of her judgment HHJ Anderson said,
“I must take into account that this injunction was made in the Court of Protection to protect a vulnerable person from contact with Mr Elliot. I take into account that the terms of the injunction were spelled out clearly by Cobb J to Mr Elliot directly in court. The breaches were deliberate breaches of the court order where Mr Elliot had a choice and took the decision to breach the order.”
The judge discharged the “just in case” injunction against X under the jurisdiction of the High Court, and substituted it for an injunction in the same terms, made in the Court of Protection.