Re FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam), [2016] MHLO 37

"FD is an 18 year old young woman. In July 2016 a local authority issued proceedings seeking an injunction under the inherent jurisdiction of the High Court to prevent AD (her father) and GH (a male friend) from having contact with FD and from going to her home. So far as concerns the application for an injunction against GH, the local authority also seeks a power of arrest. The issue before the court is whether a power of arrest may be attached to an injunction granted by the High Court under its inherent jurisdiction in the case of a vulnerable adult who has capacity. ... It is clear that under its inherent jurisdiction the High Court has a wide and largely unfettered discretion to grant injunctive relief to protect vulnerable adults. That discretionary power is at least as wide as its powers in wardship. In Re G the Court of Appeal was in no doubt that under its inherent jurisdiction in wardship the High Court has no power to attach a power of arrest to an injunction. I am in no doubt that the position is exactly the same so far as concerns the inherent jurisdiction to protect vulnerable adults. ... [I]t appears that FD will again be unrepresented at the next hearing, on 17th October, at which the court will determine whether she is a vulnerable person in respect of whom the court should exercise its inherent protective jurisdiction. FD does not accept that she is a vulnerable adult. Neither does she support the local authority's application for injunctions against AD and GH. If she is not, in fact, a vulnerable adult then the orders sought by the local authority would, if made, be in breach of FD's Article 8 right to respect for her private and family life. I make that point simply to highlight the importance and significance for FD of the decisions the court is being invited to make. At the hearing on 17th October FD will be a litigant in person defending an application by a local authority represented by leading counsel. There will be no equality of arms. However hard the court tries to ensure that there is a level playing field, the reality is that FD will be significantly disadvantaged. I can do no more than to invite the Legal Aid Agency to reconsider its decision as a matter of urgency."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.

Family Division

In re FD (Vulnerable Adult) (Injunction: Power of Arrest)

[2016] EWHC 2358 (Fam)

2016 Sept 9; 28

Judge Clifford Bellamy sitting as a High Court judge

High Court — Jurisdiction — Injunctive relief — Vulnerable adult with capacity — Local authority seeking injunction to restrict access to vulnerable adult — Local authority seeking to attach power of arrest to restraining injunction — Whether jurisdiction to attach power of arrest to injunction — Family Law Act 1996 (c 27), s 42A (as inserted by Domestic Violence, Crime and Victims Act 2004 (c 28), s 1)

On the local authority’s application, the court exercising its inherent wardship jurisdiction had made FD, a vulnerable but capacitous young person aged 17 with learning difficulties, a ward of court until her eighteenth birthday. FD having turned 18, the local authority sought injunctions under the court’s inherent protective jurisdiction to prevent her father and his male friend, GH, from having contact with FD or going to her home and a power of arrest in relation to the restraining injunction against GH. Pending the substantive hearing, the judge granted interim restraining injunctions with a power of arrest attached to the injunction concerning GH. A further hearing took place to consider whether the court in fact had power to attach a power of arrest to an injunction granted by the High Court under its inherent jurisdiction to protect capacitous but vulnerable adults.

On the further hearing—

Held, power of arrest attached to injunction against GH discharged. The court clearly had power under its inherent protective jurisdiction to grant an injunction to protect a capacitous but vulnerable adult to whom the provisions of the Mental Capacity Act 2005 did not apply, but as in the case of its wardship jurisdiction, the court exercising its inherent jurisdiction to protect vulnerable adults could not attach a power of arrest to an injunctive order. Neither was there any longer a statutory power in the civil and family jurisdiction under Part IV of the Family Law Act 1996 to attach a power of arrest to a non-molestation injunction. Accordingly, the court had no jurisdiction to attach a power of arrest to the restraining injunction (paras 23, 24, 35, 40, 42, 44, 48).

In re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 538Not on Bailii, CA applied.

In re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2) [2013] Fam 1, CA considered.

In re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867 distinguished.

Appearances:

Michael O'Brien QC for the local authority.

FD and her father in person.

GH did not appear and was not represented.

Reported by: Jeanette Burn, Barrister

External link

BAILII

ICLR