View source for ICLR DL v A Local Authority (2012) EWCA Civ 253, (2012) MHLO 32

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''HIGH COURT — Jurisdiction — Injunctive relief — Elderly infirm parents living in own home subject to son’s alleged threats and bullying  — One parent lacking capacity under Mental Capacity Act 2005  — Local authority bringing proceedings to protect both parents against son’s conduct — Whether High Court’s inherent jurisdiction surviving implementation of 2005 Act — Whether High Court having jurisdiction to protect parent where capacity to make decisions overborne by circumstances not covered by Act — Mental Capacity Act 2005''

'''A local authority and others v L'''

'''[2012] EWCA Civ 253;  [2012] WLR (D)  101'''

CA:  Maurice Kay, McFarlane, Davis LJJ:  28 March 2012

The High Court’s inherent jurisdiction to protect vulnerable adults had survived the implementation of the Mental Capacity Act 2005. Thus the court could act where an adult’s capacity to make decisions for herself was overborne by circumstances such as undue influence or duress which were not covered by the Act.

The Court of Appeal so stated when giving reasons for dismissing the appeal on 16 January 2012 of DL against interim injunctions made by Theis J in the Family Division on 19 April 2011 [2011] EWHC 1022 (Fam) in proceedings brought by a local authority to protect his parents ML and GRL. The local authority sought to invoke the court’s inherent jurisdiction to protect the parents whom it claimed lacked capacity as a result of duress and undue influence brought to bear by DL. The judge granted an interim injunction, restraining his behaviour towards his parents, care staff and other professionals, under the court’s inherent jurisdiction in respect of his mother and under section 48 of the Mental Capacity Act 2005 in respect of his father.

'''MCFARLANE LJ''' said that the important legal issue had been identified by the judge: whether, and to what extent, the court’s inherent jurisdiction was available to make declarations and, if necessary, put protective measures in place in relation to vulnerable adults who did not fall within the 2005 Act but who were, or were reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor. His Lordship supported the decision of Theis J (and behind that the decision of Munby J in In re: SA (Vulnerable adult with capacity: marriage) [2006] 1 FLR 867). His Lordship did not accept that the jurisdiction described by the judge was extensive and all-encompassing, or one which might threaten the autonomy of every adult in the country. It was, as Mr Bowen submitted and as the judgments of Munby and Theis JJ demonstrated, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the 2005 Act. His Lordship, like Munby J, was determined not to offer a definition so as to limit or constrict the group of “vulnerable adults” for whose benefit the jurisdiction might be deployed: see [2006] 1 FLR 867, paras 76–77. The jurisdiction, as described by Munby J and as applied by Theis J , was in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy had been compromised by a reason other than mental incapacity because they were : (a) under constraint; or (b) subject to coercion or undue influence; or (c) for some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. His Lordship did not regard In re SA as a one-off determination, which was unsupported by earlier authority and not to be followed.

'''DAVIS LJ''' and '''MAURICE KAY LJ''' agreed.

'''Appearances:''' Nathalie Lieven QC and Alex Durance (instructed by Ison Harrison Solicitors) for DL; Paul Bowen and Alison Pickup (instructed by its Head of Legal Services) for the local authority; the parents did not appear and were not represented.

'''Reported by:''' Alison Sylvester, Barrister.

© 2012. The Incorporated Council of Law Reporting for England and Wales. 
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