SF (Injunctive Relief)

In this matter I am concerned with one young person, hereinafter referred to as ‘SF’. SF is 20 years of age. She has a diagnosis of Autism Spectrum Disorder (‘ASD’) and has learning disabilities. She resides in a supported living establishment where she receives 1:1 support 24 hours per day. In September 2019 the care and support provider became aware that SF was communicating with a number of men via social media and the internet. Further, it became apparent that some of these men were attending her placement and having sexual relations with her.

Only one of these men has, to date, been identified, namely a man whom I shall refer as ‘VK’.

On 28 January 2020 the local authority applied for an injunction against VK to prevent him from attending SF’s accommodation. On 5 February 2020 the local authority applied for an injunction in the same terms against ‘persons unknown’.

On 5 February the circuit judge, who had hitherto been dealing with the case, directed that these applications should be heard by a Tier 3 judge. Accordingly, the applications were listed before Williams J. on 6 February. He made the following interim declarations and orders:

pursuant to s.16(5) and s.48 of the Mental Capacity Act 2005 (‘the 2005 Act’) an injunction against VK from contacting SF or visiting her accommodation;

VK was joined as a party solely on the issues of his contact with and having sexual relations with VK;

the matter was listed for a directions hearing before me on 10 February 2020 to consider whether the injunction against VK should be continued and whether I should grant the application for an injunction against persons unknown; and

a further directions hearing was listed before me on 14 February to consider the issue of the injunction against VK.

At hearing on 10 February I raised with counsel the question of whether the Court of Protection had the power to grant injunctive relief. I invited submissions from the applicant local authority and from the Official Solicitor acting on behalf of SF.

At the hearing on 14 February I was not persuaded that the Court of Protection had the power to make an injunctive order against a party or against a non-party. Accordingly, I discharged the injunction made by Williams J on 6 February and made an injunctive order against VK in the same terms but pursuant to the inherent jurisdiction of the High Court. I heard oral submissions on the issue. The Official Solicitor requested further time to reflect on this point and to make written submissions. I acquiesced to this request, made directions for the filing and serving of written submissions and reserved judgment.

Accordingly, the issue for me to determine is whether the Court of Protection has the power to make injunctive orders and, if so, from which provisions of the 2005 Act or other statutes this power emanates.

The Court of Protection is a creature of statute, namely the 2005 Act. The provisions of the statute are supplemented by Court of Protection Rules 2017 (‘the 2017 Rules’) and by practice directions.

The core principles of the 2005 Act are set out in s.1 of the act:

The following principles apply for the purposes of this Act.

A person must be assumed to have capacity unless it is established that he lacks capacity.

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.”

What is in a person’s best interest decision must be determined having regard to all of the relevant circumstances and the factors set out in s.4 of the 2005 Act:

The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

He must consider—

whether it is likely that the person will at some time have capacity in relation to the matter in question, and

if it appears likely that he will, when that is likely to be.

He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

He must consider, so far as is reasonably ascertainable—

the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

the beliefs and values that would be likely to influence his decision if he had capacity, and

the other factors that he would be likely to consider if he were able to do so.

He must take into account, if it is practicable and appropriate to consult them, the views of—

anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

anyone engaged in caring for the person or interested in his welfare,

any donee of a lasting power of attorney granted by the person, and

any deputy appointed for the person by the court,

The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

are exercisable under a lasting power of attorney, or

are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

“Relevant circumstances” are those—

of which the person making the determination is aware, and

which it would be reasonable to regard as relevant.”

whether a person has or lacks capacity to make a

whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;

the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.

P's personal welfare, or

P's property and affairs.

The court may—

by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or

appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters.

The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).

When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—

a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.

An order of the court may be varied or discharged by a subsequent order.

The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy—

has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P's best interests, or

proposes to behave in a way that would contravene that authority or would not be in P's best interests.”

deciding where P is to live;

deciding what contact, if any, P is to have with any specified persons;

making an order prohibiting a named person from having contact with P;

giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;

giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.

The establishment of the Court of Protection and the supplementary powers of the court are set out in ss.45-56 of the 2005 Act. For the purposes of this judgment the relevant provisions are set out in s.45 & ss.47-48 of The Act:

The court is to have an official seal.

The court may sit at any place in England and Wales, on any day and at any time.

The court is to have a central office and registry at a place appointed by the Lord Chancellor after consulting the Lord Chief Justice.

The Lord Chancellor may, after consulting the Lord Chief Justice, designate as additional registries of the court any district registry of the High Court and any county court office.

the President of the Court of Protection;

a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).]

Section 204 of the Law of Property Act 1925 (c. 20) (orders of High Court conclusive in favour of purchasers) applies in relation to orders and directions of the court as it applies to orders of the High Court.

Office copies of orders made, directions given or other instruments issued by the court and sealed with its official seal are admissible in all legal proceedings as evidence of the originals without any further proof.”

there is reason to believe that P lacks capacity in relation to the matter,

the matter is one to which its powers under this Act extend, and

it is in P's best interests to make the order, or give the directions, without delay.”

The power of the High Court to granted interlocutory injunctions derives from s.37(1) of the Senior Court Act 1981 which provides:

In the course of written submissions counsel referred me to Part 21 of the 2017 Rules and PD21A. The relevant parts of these rules are Part 21.4, 21.5 & 21.9 and PD21A, para 1 which provide:

required by a judgment or order of the court to do an act does not do it within the time fixed by the judgment or order; or

disobeys a judgment or order not to do an act,

If the time fixed by the judgment or order for doing an act has been varied by a subsequent order, or agreement of the parties under rule 3.7(4), then references in paragraph (1)(a) to the time fixed are references to the time fixed by that subsequent order or agreement.

If the person referred to in paragraph (1) is a company or other corporation, the committal order may be made against any director or other officer of that company or corporation.

So far as applicable, and with the necessary modification, this Section applies to undertakings given by a party as it applies to judgments or orders.”

the copy has been served before the end of the time fixed for doing the act, together with a copy of any order fixing that time;

where the time has been varied by a subsequent order or agreement, a copy of that subsequent order or agreement has also been served; and

where the judgment or order was made pursuant to an earlier judgment or order requiring the act to be done, a copy of the earlier judgment or order has also been served.

Where the person referred to in paragraph (1) is a company or other corporation, a copy of the judgment or order must also be served on a director or officer of the company or corporation before the end of the time fixed for doing the act.

Copies of the judgment or order and any orders or agreements fixing or varying the time for doing an act must be served in accordance with rule 21.6 or 21.7, or in accordance with an order for alternative service made under rule 21.8(2)(b).”

Subject to paragraph (2), a judgment or order to do or not to do an act may not be enforced under rule 21.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Section, a warning to the person required to do or not to do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.

An undertaking to do or not to do an act which is contained in a judgment or order may be enforced under rule 21.4 notwithstanding that the judgment or order does not contain the warning described in paragraph (1).”

I was helpfully referred by counsel to a number of authorities. The principal authorities which are relevant to the issue I have to determine are:

The local authority and the Official Solicitor both submitted that the Court of Protection does have the power to make injunctions for the purposes of safeguarding the best interests of an incapacitous person.

It is submitted that by virtue of the provisions of s. 48 of the 2005 Act the court has the power to make interim orders or directions pending the final determination of the application if it is in P’s best interests to do so.

Counsel for the local authority and for the Official Solicitor asserted that the power to make injunctive orders derives from the provisions of s.16(2) of the 2005 Act which empowers the court to make decisions on behalf of P and s.16(5) which enables the court to:

This power to make injunctive orders is reinforced by the provisions of s.17(1)(c) which enables the court to make “an order prohibiting a named person from having contact with P”. It is submitted that the opening words of s.17, namely “The powers under section 16 as respects P's personal welfare extend in particular to”, indicate that the section does not provide an exhaustive list of the powers of the court. The point is reinforced it is said by paragraph 70 of the Explanatory Notes to the 2005 Act which states:

By virtue of s.47(1) the Court of Protection has the same powers, rights privileges and authority as the High Court. The High Court has the power to make interlocutory injunctions by virtue of the provisions of s.37(1) of the 1981 Act.

Counsel for the Official Solicitor referred me to the three authorities set out above. In the case of MASM (above) paragraph Hayden J. said,

And later at paragraph 39 he said,

In the case of Re Leslie Whiting (above) Hayden J. made the following observations at paragraph 20,

Earlier in his judgment at paragraph 11 he had noted that,

The factual background to this case and early history of the orders made in this case are set out by Hayden J. in paragraphs 7 and 8 of his judgment,

He concluded the judgment at paragraph 20 with the following words,

In the case of North Yorkshire County Council (above) Cobb J. had made injunctive orders against an individual who posed a risk of harm to the vulnerable incapacitous adult who was the subject of the application in the Court of Protection. The factual matrix is set out in paragraphs 2 & 3 of the judgment of HHJ Anderson, before whom committal proceedings were listed for alleged breaches of the injunctions,

At the time of that hearing, George Elliot was in prison following an alleged breach of a sexual harm protection order. The second injunction was made in his presence at an on-notice hearing, again before Cobb J. That hearing took place on 21 January 2019. Mr Justice Cobb amended the terms of the first injunction to make them more precise. It seems that the aim of the judge was to make it clear to Mr Elliot that the injunction included a prohibition on any communications even if initiated by the young woman at the heart of this case. So, therefore, an injunction was made in Mr Elliot's presence prohibiting him from communicating with or attempting to contact her, whether directly, face-to-face, et cetera. The word "communicating" was put in the injunction in place of "contacting".

At paragraph 10 of her judgment HHJ Anderson said,

I am extremely grateful to counsel for their succinct and helpful oral and written submissions.

The fact that Hayden J., now the Vice-President of the Court of Protection, and a judge with the huge experience of Cobb J. take the view that the Court of Protection does have the power to grant injunctions to support and ensure compliance with its best interests decisions and its orders is very persuasive.

Having had the benefit of counsels’ submissions and the time to reflect on the authorities cited to me, I am now persuaded that the Court of Protection does indeed have the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders.

I so find for the following reasons:

s.47(1) of the 2005 Act is drafted in wide and unambiguous terms;

it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the 1981 Act to grant injunctive relief;

this conclusion is fortified by the terms of s.17(1)(c) of the 2005 Act which permits the court to prohibit contact between a named person and P;

it is further fortified by the terms of ss. 16(2) & (5) of the 2005 Act. The provisions of s.16(5) are drafted in wide terms and enable the court to “make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)”;

finally, the 2017 Rules, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.

In the premises, I propose to discharge the injunction I made against VK on 10 February under the inherent jurisdiction of the High Court and to substitute it with an injunction in the same terms made in the Court of Protection.