The Court of Protection team at 39 Essex Chambers analyse the second in two rulings by Mr Justice Cobb on the inherent jurisdiction.
In Redcar and Cleveland BC v PR and others  EWHC 2305 (Fam) Cobb J was concerned with a 32-year-old woman who had recently been affected by mental health problems which had resulted in admission to hospital as a voluntary patient. During her admission she made allegations against one of her parents and was extremely anxious about returning to live with them (to the point of threatening to take her own life). When she was ready to be discharged, the local authority considered that it was required to safeguard her by applying to the High Court for orders under the inherent jurisdiction preventing PR from returning to live with her parents. Interim orders were granted, initially without notice, and were kept in place for around 4 weeks. Ultimately, PR decided she did not want to return to live with her parents, and they in turn agreed to have limited contact with her and not to try to persuade her to return home, and the inherent jurisdiction orders were discharged. The issues for Cobb J were whether the interim orders should have been made, and whether there was a proper basis for withholding disclosure of certain information from PR’s parents.
Cobb J found that:
1. The interim orders should not have included an injunction against PR herself (restraining her from going to live with her parents) as the evidence was that she was sufficiently unwell that she would not have been able to make an informed decision whether to comply with the order, and it would not have been appropriate for any enforcement action to be taken if she had chosen to return home. Cobb J recommended that:
‘before a local authority makes an application under the court’s inherent jurisdiction which is designed to regulate the conduct of the subject by way of injunction, particularly where mental illness or vulnerability is an issue, it should be able to demonstrate (and support with evidence) that it has appropriately considered:
i) whether X is likely to understand the purpose of the injunction;
ii) will receive knowledge of the injunction; and
iii) will appreciate the effect of breach of that injunction.
If the answer to any of these questions is in the negative, the injunction is likely to be ineffectual, and should not be applied for or granted as no consequences can truly flow from the breach.
2. PR should have been given permission in the initial without notice order to apply to the court to vary or discharge the order without requiring notice to be given, to ensure her access to justice was not impeded.
3. It was, however, proper for the judge who had made the interim orders against PR’s parents to invoke the inherent jurisdiction on an interim basis. The other statutory provisions which could potentially have been invoked (such a non-molestation orders, an order under the Serious Crime Act 2015 section 76 which creates a criminal offence of controlling or coercive behaviour where A and B live together and “are members of the same family”, or the Protection from Harassment Act 1997) would not have offered PR sufficient protection and would have required her active co-operation which would have been difficult given her mental health problems and her susceptibility to coercion and control.
4. PR had not been deprived of her liberty. She had been content to move to the placement identified by the local authority on discharge from hospital. Even if the inherent jurisdiction could be used to deprive a capacitous person of their liberty as an emergency measure, such authorisation would only last a short time – probably not more than 6 weeks having regard to the decision in Winterwerp v Netherlands.
5. The question of whether documents should have been disclosed to the parents did not have to be determined as there was to be no further involvement of the court, but even though PR had not chosen to issue proceedings and was sufficiently anxious about disclosure to her parents that it was affecting her willingness to participate in therapeutic activities, the parents would have had ‘a powerful case…to see relevant documents in order to able to participate effectively and fairly in the proceedings so far as they relate to them.’
This judgment will provide some reassurance to statutory bodies faced with difficult and urgent situations concerning safeguarding people with capacity that the courts will exercise their powers, at least on a temporary basis, to assist in protecting vulnerable adults. In PR’s case, temporary court orders were all that were needed to prevent PR returning home and to support her to move to alternative accommodation. Had PR subsequently decided she wished to return home, it is much less clear whether the court would have found a way to stop that from happening, given Cobb J’s view that the inherent jurisdiction ought not to be used to deprive capacitous people of their liberty.
This article was written by the Court of Protection team at 39 Essex Chambers.
To read the team's analysis of the first of Cobb J's rulings, in a case concerning a young adult and the use of the inherent jurisdiction to authorise deprivations of liberty where there is no statutory framework in place, click here.