28/10/2019

What are the limits on the use of the inherent jurisdiction to prevent a vulnerable individual, who has capacity from living with their spouse?

Case
London Borough of Croydon v KR & Anor [2019] EWHC 2498 (Fam)
Relevant Topics
  • Inherent Jurisdiction, Marriage and Residence, Safeguarding, injunctions; Article 8 – right to family life, Mental Capacity Act 2005
  • SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867
Practical Impact

The Mental Capacity Code of Practice is relevant in considering vulnerability, even when an individual has capacity. The provisions which relate to assumptions not being made based on age or disability are relevant to determining if somebody is vulnerable for the purposes of invoking the inherent jurisdiction.

All less intrusive steps to protect P must have been considered carefully. If there are steps that could be taken to mitigate the risk these should be taken before embarking on an application to restrict such a fundamental right. In this case it was found that the LA had not taken adequate steps to address the couple’s housing needs that may have alleviated some of the difficulties.

The Court will be more likely to grant an order if it is being requested on a temporary basis rather than an order that permanently excludes P from living with their spouse.

Summary

The Local Authority (LA) sought an injunction to prevent P from living with his wife. P was deemed to have capacity to make decisions about where he lived and who he lived with. The issue was whether the inherent jurisdiction could be invoked.

The LA withdrew their case, on the basis of the evidence that was given, but judgment was given in light of the issues raised by the case.

The correct test is to consider whether P falls within the scope of inherent jurisdiction, by reference to the SA case and then considering whether the interference with Article 8 rights is justified.

Background

P, a 59 year old man had sustained a brain injury and had epilepsy. He had a high level of needs and was dependent on carers. He had been married for 40 years. The LA had safeguarding concerns regarding P’s relationship with his wife, in circumstances were there were allegations about domestic abuse and P was vulnerable.
P had moved to a care home and had been living there for six months, but expressed a desire to return home to his wife, notwithstanding the difficulties and issues with their relationship.

Key Findings

As the LA had withdrawn their application, the Judge did not need to make a determination in P’s case but he did find that even if P fell within the inherent jurisdiction, the order would not have been made because there were less intrusive means of putting protections for P in place. At the time judgment was given he also found that P did not in fact fall within the jurisdiction.