FD (Inherent Jurisdiction: Power of Arrest)

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.

The local authority has been involved in the life of FD and her family for several years. In 2009 she was referred to the Child and Adolescent Mental Health Services (‘CAMHS’) as a result of weight loss and behaviour difficulties. She was diagnosed with a Food Avoidant Emotional Disorder. She spent several months as a patient at Great Ormond Street Hospital.

Some months after her discharge from Great Ormond Street the local authority became concerned that FD was associating with young people who might present a sexual risk to her. There were also concerns around her cognitive functioning. Following assessment a psychiatrist concluded that FD had difficulty in weighing up information and in anticipating the full extent of the consequences of her actions and decisions. She was considered to be more vulnerable to exploitation than other young women of her age.

In June 2014 the local authority became aware that FD was in a relationship with GH. FD was then aged 16. GH was aged 29. GH was known to be a drug user. He has an extensive criminal record including convictions for drug related offences and offences of violence. FD told social workers that GH forced her to take heroin and MCat, that he cut her on her arms, legs and heels, that he took money from her on a regular basis, that he took food from her that had been provided by the local authority and sold it. She said that she was scared of him. There have been times when she has also said that she loves him and wants to be in a relationship with him.

The local authority also had concerns about FD’s father, AD. He, too, has a history of drug abuse and a criminal record. FD says that it was her father who first introduced her to heroin. The local authority was aware that he had previously taken money from FD. He was known to the local authority as an individual with a history of exploiting vulnerable adults as a means of obtaining money and somewhere to live.

In June 2015, when FD was aged 17, the local authority made an application pursuant to s.100(3) of the Children Act 1989 seeking leave to apply to the court for the exercise of its inherent powers in wardship. The application was granted. Wardship proceedings were issued. FD was made a party. A Children’s Guardian was appointed for her. FD remained a ward of court until her 18^th birthday.

Within the wardship proceedings the court gave permission for FD to be assessed by a Child and Adolescent Psychiatrist and a specialist registrar at Great Ormond Street. They assessed her as meeting the criteria for Mild Learning Disability. Her history was suggestive of a diagnosis of Mixed Disorder of Conduct and Emotions. She presented with a chronic and relapsing history of Avoidant/Restrictive Food Intake Disorder which was in remission at the time of the assessment. She also presented with a history of Substance Use Disorder, including dependence on heroin, which was also in remission at the time of the assessment.

FD was assessed as having little insight into the need for support services, as lacking capacity to make an informed decision about accessing appropriate treatment and as lacking capacity to make decisions about how to manage her finances. The assessment also concluded that,

On the application of the local authority I granted an injunction restraining GH from making contact with FD. The injunction remained in force until FD’s eighteenth birthday. The local authority did not apply for a power of arrest to be attached to the injunction.

It was clear that FD would continue to require support and protection once the wardship proceedings had come to an end. A month before FD’s eighteenth birthday the local authority issued proceedings in the Court of Protection under the Mental Capacity Act 2005 seeking ‘interim and final declarations with regard to capacity to litigate, make decisions with regard to residence care and welfare, and contact’. The Official Solicitor consented to act on behalf of FD so long as there was funding in place to meet her legal costs. FD was granted legal aid. The Official Solicitor appointed a solicitor, Mr Stephen Cardinal, to act on FD’s behalf.

The local authority applied for injunctions against GH and AD restraining them from contacting FD or from going within a half mile radius of her home and asked that a power of arrest be attached to the injunction against GH. The court granted the application.

An order was made for an expert assessment of FD’s mental capacity. The assessment was undertaken by a Consultant Psychiatrist. She agreed with the Great Ormond Street assessment that FD has a diagnosis of mild learning disability. FD also presented with impairments in social and adaptive functioning. The psychiatrist concluded that FD does have a disturbance in the functioning of the mind or brain within the meaning of s.2(1) of the Mental Capacity Act 2005. However, so far as concerns the issue of capacity, her conclusions are at variance with those set out in the earlier Great Ormond Street assessment. She concluded that although FD lacks capacity to make decisions concerning the management of her property and financial affairs, she does have capacity in other important areas including, in particular, capacity to instruct her solicitor, capacity to make decisions concerning her residence and about who she should live with and capacity to make decisions concerning her care arrangements. She went on to say that in her opinion FD,

The letter of instructions to the psychiatrist contemplated the possibility that the psychiatrist may conclude that FD does have capacity to make decisions about her care and her relationships. In that eventuality the psychiatrist was asked to express an opinion about whether FD is nevertheless a vulnerable adult who is unable to make genuine choices in key areas. In her report the psychiatrist said that,

The local authority accepted the psychiatrist’s opinion on capacity. On 1^s July the court made declarations that FD has capacity to ‘(i) conduct these proceedings; (ii) make decisions as to where she should live; (iii) make decisions as to her care and treatment; (iv) make decisions about contact with others.’ The order also included a declaration that FD lacks capacity to manage her financial affairs and that it was in her best interest ‘that an authorised officer of the local authority be appointed Deputy for her property and affairs and to make decisions on her behalf regarding her finances’.

The local authority remained concerned about the risks to FD arising out of her relationships with AD and GH. In reliance on the psychiatric assessment that FD is an extremely vulnerable young woman, in July the local authority issued proceedings under the court’s inherent jurisdiction in which it seeks injunctive orders against AD and GH restraining them from contacting FD or visiting her home. In her statement in support of this application FD’s social worker says that,

The local authority’s application came before me on 15^th July. The local authority was represented by Ms Nageena Khalique QC. FD was again represented by Mr Cardinal. Though she had the benefit of legal aid in the Court of Protection, FD did not then have the benefit of legal aid in these proceedings. Mr Cardinal appeared pro bono. AD and GH did not appear and were not represented.

FD does not accept that she is a vulnerable person in respect of whom the court may exercise its inherent jurisdiction to put in place a protective framework. That issue is listed for a contested hearing on 17^th October. In the interim I was satisfied that it was appropriate to grant injunctions in similar terms to those granted in the Court of Protection proceedings.

The local authority requested that a power of arrest again be attached to the injunction against GH. I queried whether the court has the power, under its inherent jurisdiction, to attach a power of arrest. Ms Khalique QC drew my attention to the decision of Munby J (as he then was) in Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867 (hereafter ‘Re SA’). Munby J determined that under its inherent protective jurisdiction the court has the power to grant injunctive relief to protect a vulnerable adult. The order he made is set out in full at paragraph 136 of his judgment. It is only necessary for me to refer to two parts of that order. Paragraph (1) provides that, ‘The first and second defendants are prohibited (whether by themselves or by instructing or encouraging any other person from…(b) using violence on [SA]’. Paragraph (4) of the order provides that ‘A Power of Arrest is attached to paragraph 1(b) above until 1 June 2006’. The decision in Re SA was not appealed; it was subsequently approved by the Court of Appeal in DL v Local Authority and others [2012] EWCA Civ 253, [2012] COPLR 504.

Without hearing full argument on the point, I was persuaded that I did have the power to attach a power of arrest to the injunction and that on an interim basis it was appropriate to exercise that power in this case.

Some days later I became aware of the decision of the Court of Appeal in Re G (Wardship)(Jurisdiction: Power of Arrest) [1983] 4 FLR 538 (hereafter ‘Re G’). The headnote reads:

I contacted Ms Khalique and Mr Cardinal to express concern that the court may not have the power to attach a power of arrest to an injunction granted under its inherent jurisdiction in the case of a vulnerable adult who has capacity. I indicated that I wished to hear full argument on the point in the light of which I proposed to reconsider my earlier decision.

I heard argument on 9^th September. The local authority was represented by Mr Michael O’Brien QC. FD was not represented, Mr Cardinal having been unable to obtain legal aid for her. That is an issue to which I return at the end of this judgment. FD and AD appeared in person. GH did not appear and was not represented.

That the court has the power under its inherent jurisdiction to grant an injunction to protect a capacitous but vulnerable adult to whom the provisions of the Mental Capacity Act 2005 do not apply, is not in doubt. In DL v A Local Authority and others [2012] EWCA Civ 253, [2012] COPLR 504, McFarlane LJ made the position very clear. He said:

It is also now well-established that the essence of the court’s inherent protective jurisdiction is to be flexible so as to be able to respond to social needs and changing social values. The question that arises in this case is whether that flexibility extends to provide jurisdiction to attach a power of arrest to an injunction granted under the court’s inherent protective jurisdiction. Consideration of that issue begins with the decision of the Court of Appeal in Re G.

The essential facts of Re G can be stated shortly. G was born in the Isle of Man in 1979. His parents were unmarried. Their relationship ended in 1981.The mother came to England with G. She began wardship proceedings. On two occasions the father snatched G from his mother’s care. On each occasion G was found and returned to the care of his mother. Within the wardship proceedings the court granted care and control to the mother and also granted non-molestation injunctions to which the judge attached a power of arrest. The father appealed against that part of the order attaching a power of arrest. The appeal was allowed.

Giving the leading judgment, Ormrod LJ said that,

On behalf of the local authority Mr O’Brien relied upon a number of authorities in support of his submission that the court does have jurisdiction to attach a power of arrest to the injunction granted against GH. I need only to refer to three of them.

The first is Re SK (Proposed Plaintiff)(An Adult by way of her Litigation Friend) [2005] 2 FLR 230. The application related to a young adult woman who was habitually resident in the UK but who had been taken to Bangladesh by her parents. There was concern that the parents intended to force her into marriage. Singer J made orders under the High Court’s inherent jurisdiction. Those orders included injunctions to prevent named individuals from threatening or harassing the young woman, or using violence against her, or causing arrangements to be made for her to be married. In his judgment, after outlining the injunctive orders he proposed to make, the judge said,

Although the learned judge was clearly of the opinion that he had the power to attach a power of arrest to the injunction, the order he made, which is appended to his judgment, does not in fact contain a power of arrest. There is no indication that his attention was drawn to Re G.

The second case is that of Re SA, to which I referred earlier. In that case the key issue considered was whether the court had jurisdiction to continue protection previously provided to SA during her minority to protect her from the risk of an unsuitable arranged marriage. In his judgment, Munby J made the point that,

Munby J goes on to say that ‘there is also no doubt that the court has a wide and largely unfettered jurisdiction to grant appropriate injunctive relief’ (§86) both interim and final, including the power to ‘grant whatever injunctive relief is required to preserve or regulate the status quo’ (§89). Furthermore, ‘in an appropriate case the court can also make tipstaff orders – location orders, collection orders and passport orders – in relation to an adult just as it does in relation to children.’ (§91).

Munby J goes on to express the opinion that:

Notwithstanding all of those points it remains the case that although Munby J attached a power of arrest to the injunction he made, consideration of the court’s power to attach a power of arrest was not the focus of his analysis. Indeed, the judgment does not include any discussion of the court’s power to attach a power of arrest when exercising its inherent jurisdiction to protect vulnerable adults.

The third case, which I have also referred to earlier, is the decision of the Court of Appeal in DL v A Local Authority in which, as I have noted, the decision of Munby J in Re SA was supported. It is clear that in giving its support the Court of Appeal was primarily doing so in the context of its own decision that the inherent jurisdiction continues to exist alongside the powers set out in the Mental Capacity Act 2005. Once again the issue of the court’s power to attach a power of arrest was not the focus of the court’s analysis. There no discussion in DL v A Local Authority of the question whether, under its inherent jurisdiction, the court has the power to attach a power of arrest to an injunction. Indeed, there was not even a reference to the fact that such an order had been made by Munby J in Re SA. It does not appear that Re G was drawn to the attention of either Munby J in Re SA or the Court of Appeal in DL v A Local Authority.

I am aware of only three statutes in the civil and family jurisdiction that create a power of arrest: the Housing Act 1996, the Domestic Violence and Matrimonial Proceedings Act 1976 and the Family Law Act 1996. Counsel was unable to point to any other statutory powers of arrest. The Housing Act 1996 has no application to the circumstances of this case. It is appropriate, briefly, to consider the other two statutory powers.

Section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 gave to ‘a party to a marriage’ and to ‘a man and woman who are living together in the same household as husband and wife’ the right to apply to the court for protection against abuse. More particularly, the court was empowered to restrain the other party from molesting the applicant or a child living with the applicant and to exclude the other party from the matrimonial home or to require the other party to permit the applicant to enter or remain in the matrimonial home.

Upon granting a non-molestation injunction and/or an exclusion order, s.2(1) provided that

The Domestic Violence and Matrimonial Proceedings Act was repealed upon the coming into force of Part IV of the Family Law Act 1996. The key changes brought about by the 1996 Act were to widen the scope of those entitled to protection under the Act to include those who are ‘associated persons’ (defined in s.62(3)), to widen the powers available to the court to control occupation of property, replacing ‘exclusion orders’ by ‘occupation orders’ (see ss. 33, 35, 36, 37, 38 and 39) and to extend the power to make such orders so that the power became available not only in response to an application by a person seeking the protection of the court but also on the initiative of the court itself in any family proceedings.

The 1996 Act also widened the court’s powers to attach a power of arrest to an occupation order or non-molestation order, removing the requirement to prove that the person requiring protection had suffered actual bodily harm. Section 47 of the Act, headed ‘Arrest for breach of order’, provides that,

The Domestic Violence, Crime and Victims Act 2004 came into force on 1^st July 2007. This Act made significant amendments to the 1996 Act. One of those amendments was to remove the power to attach a power of arrest to a non-molestation order (though the power was preserved so far as concerns occupation orders). The power to attach a power of arrest to a non-molestation order was replaced by a provision that ‘A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence’ (see s.42A(1)). In other words, breach of a non-molestation order was criminalised.

On behalf of the local authority, Mr O’Brien sought to persuade me that the decision of Munby J in Re SA can be distinguished from the decision of the Court of Appeal in Re G on the basis that the latter was concerned with the court’s inherent jurisdiction in wardship whereas Re SA was concerned with the court’s inherent jurisdiction to protect vulnerable adults.

There are two problems with that submission. Firstly, I noted earlier (§30) that in his judgment in Re SA, Munby J made it clear that ‘the court’s powers to make orders under the inherent jurisdiction in relation to adults would seem to be as wide as its powers when exercising its inherent parens pariae jurisdiction in relation to children’. Re G makes it clear that the court’s powers in wardship do not extend to permitting the court to attach a power of arrest to an injunctive order. It would in my judgment be surprising if, contrary to the position in wardship, under its inherent jurisdiction to protect vulnerable adults the High Court does have the power to attach a power of arrest to an injunction. There is no obvious or logical reason why there should be such a distinction.

Secondly, and following on from the last point, Mr O’Brien’s submission does not address the central point made by the Court of Appeal in Re G and that is that there is a fundamental distinction to be drawn between the power to make orders and the power to enforce those orders. The powers of the court to enforce its orders in wardship (and also, in my judgment, orders made under its inherent jurisdiction to protect vulnerable adults) are the ordinary powers the court has to enforce its orders. Those powers do not include the power to attach a power of arrest to an injunction.

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.

It does not follow from that conclusion that the court had no jurisdiction to attach a power of arrest to the non-molestation injunction granted in Re SA. In my judgment it is clear that in Re G the court would not have overturned the decision of the first instance judge had it been the case that there was a statutory power to attach a power of arrest. There was no statutory power to do so because the mother and the father were not ‘living together’ within the terms of s.1(2) of the Domestic Violence and Matrimonial Proceedings Act 1976. Had the same facts occurred after the coming into force of Part IV of the Family Law Act 1996 then it seems to me that a different result would have been arrived at. On the facts of Re G the mother would have been an associated person and the court would, therefore, have been able to attach a power of arrest – a statutory power of arrest – to a non-molestation injunction.

At the time Re SA was heard Part IV of the Family Law Act 1996 gave the court the power to attach a power of arrest to a non-molestation injunction. It is clear from the detail provided in the judgment that SA and her family were ‘associated persons’ within the meaning of s.62(3). SA she was therefore entitled to the protection of a non-molestation injunction and to a power of arrest.

If that argument is correct then it seems to me that if Part IV of the Family Law Act 1996 were in those same terms today then on the facts of this case the court would have the jurisdiction not only to make a non-molestation injunction against GH (on the basis that FD and GH are associated persons) but also to attach a power of arrest. However, Part IV is not in the same terms today. Part IV was amended with effect from 1^st July 2007 by removing the power to attach a power of arrest to a non-molestation injunction. It follows, therefore, in my judgment, that the statutory power of arrest available to Munby J in Re SA is no longer available.

I therefore conclude that the court has no jurisdiction to attach a power of arrest to a non-molestation injunction granted against GH. The power of arrest attached to the interim injunction will be discharged forthwith.

I noted earlier that at the request of the local authority a power of arrest was attached to the non-molestation injunction granted against GH in the Court of Protection proceedings. Although I have not heard argument on the point, for the reasons stated above it seems to me that the court had no jurisdiction to attach a power of arrest to that order and that that part of my order was wrongly made.

The concerns relating to the safety and well-being of FD have been consistent across three different types of proceedings – wardship proceedings, proceedings in the Court of Protection and the present proceedings under the court’s inherent jurisdiction. In the first two sets of proceedings FD had the benefit of legal aid and was legally represented. In these present proceedings she appears as a litigant in person, her former solicitors having been unsuccessful in their attempts to obtain public funding for her. That is a cause for concern. It is appropriate to set out, briefly, the reasons why that state of affairs has arisen.

It is clear that proceedings under the inherent jurisdiction of the High Court for the protection of a vulnerable adult are within scope for legal aid purposes. Paragraph 11 of Schedule 1, Part 1 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 is headed Family homes and domestic violence. So far as is relevant, it provides that legal aid is available in respect of,

Even though in scope, before legal aid can be granted an applicant must still first satisfy the means and merits test. For FD, that is where the problem arises. FD is in receipt of state benefits. I am told that through no fault of hers there was a problem with the payment of one of the benefits to which she was entitled. When the error came to light FD became entitled to a back payment of £12,000.

Regulation 8 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 provides, so far as is relevant, that,

FD’s capital of £12,000 is more than the capital threshold for entitlement to legal aid. That leads to the odd result that a benefit which, had it been paid weekly, would not have led to FD being outside the financial threshold for entitlement to legal aid, now disentitles her to legal aid because it is paid in arrears by way of a lump sum. Is there any way around that problem?

Regulation 12 is headed, Waiver of eligibility limit in proceedings relating to domestic violence and forced marriage. It provides that

The regulations do not give guidance on the factors which the Director should take into account in considering whether it is ‘equitable’ to disapply the eligibility limits. Whether it is equitable will depend upon all the circumstances of the particular case. The use of the word ‘may’ makes it clear that the Director has a discretion. The correct approach to the exercise of that discretion is not an issue for determination in this case. The point to note is that at this stage, the Director has not considered it equitable to exercise his discretion under regulation 12(2). The Legal Aid Agency requires FD to make a contribution of £5,000.

In a letter to the court dated 8^th September, FD’s solicitor, Mr Cardinal, set out the current position concerning FD’s legal representation

It is for these reasons that FD has been unrepresented at this hearing. For the same reason it appears that FD will again be unrepresented at the next hearing, on 17^th 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 17^th 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.