Family Law

Mind the Gap: The inherent jurisdiction and common sense to the rescue

In the current climate of anxiety about the impact of financial cuts, I was heartened to read the judgment of the President in A Local Authority v DL [2010] EWHC 2675 (fam) given on 25 October 2010. This was, as the President said, a highly unusual case. It seems to me to demonstrate a genuine concern on the part of the local authority which took a sensitive and thoughtful approach to a difficult issue, supported by a common sense judgment from the court.

Mr and Mrs L were respectively 85 and 90 years old and lived with their son DL (who was in his 50s) in a house owned by Mr L. Mrs L was physically disabled and receiving twice daily visits from a care provider. The local authority was concerned about DL's behaviour towards his parents which was said to include physical assault, threats and controlling behaviour including controlling the access of Mrs L's carers to the house. It also seemed that DL had been trying to coerce his father to transfer the house to him and had put pressure on both his parents to move Mrs L into a care home against her wishes.

Although everyone involved had capacity to bring proceedings on their own account, it was apparent that Mr and Mrs L were unwilling to bring proceedings against their son. The local authority had considered various means by which they might protect the elderly couple, including the criminal law and Court of Protection proceedings. However in light of Mr and Mrs L's anxieties about damaging their relationship with their son and the fact that there was no issue of mental incapacity, the local authority had to find a suitable jurisdiction on which to ground any proceedings. Ultimately it applied ex parte for a non-molestation type injunction seeking only to restrain DL from acting unlawfully and therefore not prejudicing his rights in any way. The authority appears to have been acutely aware of the need to balance the need to protect Mr and Mrs L from harm with the Art 8 ECHR rights of everyone involved. Their counsel quoted Munby J in Re MM [2009] 1 FLR 443 "What good is it making someone safer if it merely makes them miserable?" 

It was submitted that there was jurisdiction to make such an order under the High Court's inherent jurisdiction to protect vulnerable adults and also under s222 Local Government Act 1972. The President agreed that the inherent jurisdiction exists to remedy lacunae in the law. Pending an inter partes hearing he was willing to accept that there was a lacuna here and the inherent jurisdiction could be used to protect these vulnerable adults. He ordered a Harbin v Masterman enquiry by the Official Solicitor to ensure the proceedings were being brought for the benefit of the couple. He also considered it arguable that the LGA 1972 founded jurisdiction to make the order sought, but that it did not greatly add to the arguments advanced under the inherent jurisdiction.

Of course, as this was an ex parte hearing the President stressed that he was making no findings of fact and on the inter partes hearing the issue of the existence of the jurisdiction and whether and how it should be exercised will need to be further explored. I suspect however that in our aging population there will be numerous people in a similar situation, and this jurisdiction properly exercised could prove to be a valuable tool in the armoury of the responsible local authority to protect the vulnerable.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.