Family Law

(Court of Appeal, McFarlane, Maurice Kay, Davis LJJ, 28 March 2012)

The local authority sought to invoke the inherent jurisdiction of the High Court in respect of two elderly people who they claimed lacked capacity by reason of duress or undue influence by their son. The main issue was whether there were certain cases which fell outside the scope of the Mental Capacity Act 2005 in which the inherent jurisdiction could still be utilised. Theis J held that the inherent jurisdiction did survive the 2005 Act and made orders despite the fact that one or both of the elderly people retained capacity for the purposes of the MCA 2005.

The son appealed. Appeal dismissed. There was established authority that the inherent jurisdiction covered a wider class of vulnerable adults than the MCA which included those subject to constraint, undue influence/coercion or those who were otherwise prevented from providing a genuine consent. The inherent jurisdiction was not limited to persons who suffered from a mental disorder or illness.

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