Re X (Inherent Jurisdiction: Vulnerable Adult) [2026] EWHC 2857 (Fam) is a case which shows (1) the importance of legal literacy on the part of frontline professionals; and (2) the need for legal tools to reflect the reality that capacity and autonomy are two very different things.
As Hayden J noted at the outset of the judgment, it arose out of an urgent ex parte telephone application on behalf of Devon and Cornwall Police to prevent the travel abroad of a woman, X, so as to secure against the risk that she was going to her death at the hands of her husband. Such an application would not generally give rise to a written judgment, but Hayden J clearly wanted to take the opportunity to provide one (covering both the initial application, and a return date, at which X was represented) not just out of his commitment to transparency, but also to set out his views about the proper exercise of the inherent jurisdiction, and to set out his appreciation for the work done by the police, and in particular a DS Portch, in taking the steps that they had.
The judgment is relatively short, but the picture painted of X’s circumstances is a deeply troubling one. Particularly troubling – but not surprising to anyone with experience in this area, or who has read Oliver Lewis’ book Coercive Control and Vulnerable Adults: Law and Practice in the Court of Protection and under the Inherent Jurisdiction of the High Court – was the depiction of a situation in which someone who had initially managed to escape, and to share details of that abuse, was being coerced back into that situation. As Hayden J identified, the immediate trigger for the application was that
12. […] police and other professionals became increasingly concerned that, notwithstanding X’s clear capacity to make decisions and her repeated insistence that she was acting of her own free will, her autonomy had, in reality, become compromised by coercion, undue influence, threats, familial pressure and emotional manipulation. The contrast between her present position and her earlier, detailed, resolute and consistent accounts of abuse is striking. Significantly, she has never actively retracted or disavowed those allegations.
The application sought:
13. […] urgent protective relief in respect of a “vulnerable adult”. For the avoidance of doubt, the police expressly recognise that X is capable of understanding, retaining and communicating information relevant to her decisions. The police believe, however, that her capacity to assert her own autonomy, even in the face of a real risk to her life, has been squashed by coercion, undue influence and other external pressures.
14. The applicant seeks short term and tightly focused injunctive relief preventing X’s departure from England and Wales, together with associated passport and travel restrictions, for a limited period only. The purpose of the proposed intervention is not to compel any particular course of action but, as DS Portch puts it, to “give her some breathing space” to organise her thoughts and feelings. What is contemplated is a limited intervention to afford a period of decompression, bearing in mind that X is a capacitous adult with the agency to make her own decisions, be they objectively good or bad. In other words, the relief sought from the Court is to facilitate X’s decision-taking, not to remove it from her.
15. The applicant contends that there is a real possibility that X faces grave harm if the concerns identified in the police assessments prove, as they are perceived to be, well founded. It came to light that X had booked coach travel to Heathrow Airport and had been booked on a flight that evening. DS Portch proposes to stop her at the airport and to encourage her to remain in the United Kingdom for the reasons I have set out above. That is why the application was made urgently to an out of hours judge.
The steps were successful; at the return hearing, Hayden set out the position as recorded by DS Portch in his witness statement:
36. DS Portch concludes his statement with these remarks:
“I have found the fact that [X] has engaged well with both police and support agencies since the order being granted as a positive in this case. Not only has she shown acceptance that the likely outcome of her travel would be death, her engagement allows ongoing support work to safeguarding her in the longer term. I am aware officers are also exploring options via Interpol with [European] authorities in relation to the welfare of [X]’s son, who understandably continues to be a draw for her to be reunited with, however whilst he remains with her husband such reunification will inevitably hold with it the risks as discussed.”
37. It strikes me that this final passage reveals that X has begun to reclaim her autonomy. For a sustained period, as the evidence strongly indicates, her capacity for independent decision-making had been overpowered by those who exploited and abused her. I do not for a moment underestimate the challenges that lie ahead. However, I am entirely satisfied that this is precisely the kind of situation in which the protective ambit of the High Court’s inherent jurisdictional powers fall to be deployed. The Court’s intervention has never been directed towards the subjugation of X’s autonomy. Quite the reverse. Its purpose has been to create the space within which she might, freely and authentically, recover it. The objective has been to restore, rather than to restrict, her ability to make her own choices. There are encouraging signs that those objectives are being achieved.
38. To have prioritised X’s overborne and distorted decision-taking under the banner of respect for her autonomy, whilst simultaneously disregarding the grave risks to her life, would have been to abdicate responsibility to a vulnerable woman whose ability to exercise truly independent judgement had been profoundly compromised. The balance to be struck is captured succinctly by Maurice Kay LJ in Re L (supra):
“79. Where a person lacks capacity in the sense of s2(1) of the MCA 2005, he has the protection provided by that statute. A person at the other end of the scale, who has that capacity and is not otherwise vulnerable, is able to protect himself against unscrupulous manipulation, if necessary by obtaining an injunction against his oppressor. This case is concerned with a category of people who, in reality, have neither of those remedies available for their protection. It would be most unfortunate if, by reference to their personal autonomy, they were to be beyond the reach of judicial protection. For the reasons given by my Lords, they are not. The inherent jurisdiction continues to exist. I have nothing to add as to its scope.”
As noted above, it appears that Hayden J wished to give the judgment in part to set out his views as to the continued necessity of the inherent jurisdiction, in circumstances where, as he noted that:
18. […] Some academics have been highly critical of the case law in this sphere, which has been said to be built on the “shakiest of foundations and used as a springboard to create an entirely new jurisdiction over vulnerable adults where the prerogative jurisdiction never historically existed” (Sir James Munby “Whither the Inherent Jurisdiction”).[1]
Hayden J did not engage directly with this criticism, but set out his views thus:
19. Where an individual has capacity, the Mental Capacity Act 2005 does not apply; the inherent jurisdiction is “targeted solely at those adults whose abilities to make decisions for themselves has been compromised by matters other than those covered by the 2005 Act” (see Re L (vulnerable adults with capacity: court’s jurisdiction)) [2013] Fam 1, para. 53. The leading authority is Re SA (vulnerable adult with capacity: marriage) [2006] 1 FLR 867. Munby J, as he then was, described “vulnerable adults” thus:
“82. In the context of the inherent jurisdiction I would treat as a vulnerable adult someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who is deaf, blind or dumb, or who is substantially handicapped by illness, injury or congenital deformity. This, I emphasise, is not and is not intended to be a definition. It is descriptive, not definitive; indicative rather than prescriptive.”
20. This judgment was written 21 years ago. The passage above is one of very few Munby J’s judgments, if I may respectfully say so, which has not aged well. I do not think for a moment that anybody would consider the jurisdiction might be established on the basis of an individual being deaf, blind, dumb, or in some way physically vulnerable. It is a misconceived analogy. I note that Lieven J, as she then was, took a similar view in London Borough of Croydon v KR [2020] COP LR 285, at para. 60. Nonetheless, it establishes the existence of the jurisdiction. In Re L (supra) (at paragraph 19 above), Maurice Kay LJ, agreeing with McFarlane LJ’s leading judgment, expressed the view that it would be “most unfortunate” if the Court had no power to protect a person “against unscrupulous manipulation” by an ‘oppressor’ in deference to that person’s autonomy. Those concise observations strike me as precisely capturing the concern which arises in this case. Respect for autonomy is a cardinal principle, but it cannot require the Court to avert its gaze from evidence suggesting that a person’s apparent choices may in fact be the product of coercion, intimidation or manipulation. The Court’s task is not to substitute its own judgment for that of the individual, but to ensure, so far as it is able, that the individual is genuinely free to exercise their own.
21. In this challenging sphere, judges are required to address fundamental principles of autonomy and human agency in circumstances where an individual’s decision-making may be so compromised, whether by coercion or other constraining influences, that they are unable genuinely to safeguard their own welfare and may consequently place their safety, or even their life, in jeopardy. That exercise is entirely different from recognising and respecting the right of a capacitous adult to make choices which others may regard as eccentric, imprudent or plainly wrong. The law protects autonomy, not wisdom. Its concern is not with bad decisions but with decisions that are not truly free.
Another key purpose of the judgment was to highlight the work of the police:
28. On occasion, I have found it necessary to be critical of police investigations. Fairness requires me to record that this investigation stands at the opposite end of the spectrum. It was conducted with conspicuous professionalism, sensitivity and acuity throughout. In my judgement, it represents progressive policing of the very highest calibre, in a case of considerable sensitivity. Such work merits recognition, not merely for the expertise, diligence and commitment it reveals, but also because it serves a wider public purpose. It should reassure the public, and vulnerable women in particular, that their circumstances can be understood, that their voices can be heard, and that there exists a resolute determination to provide carefully calibrated protection and support where it is needed. I am very much aware that policing of this quality, in this sphere of abuse, is not ubiquitous. I highlight it here to the degree that I have to demonstrate that it exists and to offer it as a template for others.
Comment
As noted above, this judgment indicates the need for legal literary amongst front-line professionals. This comes out vividly from paragraph 32 of the judgment:
In his statement, DS Portch emphasised that whilst X was not suffering from any impairment of mind or brain so as to engage the Mental Capacity Act 2005, he nevertheless considered that her ability to make genuinely autonomous decisions was being significantly compromised by coercive influences. In particular, he considered that the use of her child as a means of exerting emotional pressure upon her was a powerful factor affecting her decision-making. Again, I agree entirely with that analysis. It was against that background that he began to explore what legal protection might be available to a capacitous but vulnerable adult. The following passage from DS Portch’s statement requires highlighting:
“…it was my opinion based on my experience in this area of safeguarding that her decision making was nonetheless hampered by the coercion she was under, in particular the use of her child as a ‘bargaining tool’. I therefore conducted research into options and came across an article by 39 Essex in relation to the concept of inherent jurisdiction of the High Court. This was not an area of law I was familiar with, however having read the summary provided I believed it could apply to this case. As such I requested contact be made with the legal services unit of Devon and Cornwall Police for advice, with counsel subsequently being instructed and an urgent hearing scheduled.”
The article that DS Portch found was the guidance note we have done in Chambers on the inherent jurisdiction (and, incidentally, I note that this is exactly why we do these guidance notes).
‘Autonomy’ is a concept that has recently had a bit of a rocky ride before the Court of Appeal in the context of the MCA 2005 (something about which Hayden J is no doubt very well aware, given that the Court of Appeal judgment was directly engaging with his use of the term in the context of the appointment of personal welfare deputies). This judgment shows how it is equally capable of being misunderstood in the context of those who are (capacitously) seeking to act under constraint – as Hayden J identified, to simply stop at the point of saying that X had capacity would have been to sacrifice her to an exceptionally narrow conception of autonomy.
The judgment reinforces how there need to be legal tools to respond to the situation where autonomy is compromised: something that the Law Commission considered necessary at the point of its original work leading to the Mental Capacity Act 2005 (see Part IX of here) but which was not taken forward at the time. I do very much hope that the “urgent review of adult safeguarding statutory duties and powers” promised in March 2026 in response to a recommendation from Baroness Louise Casey, chair of the Independent Commission on Adult Social Care will include a review of whether the inherent jurisdiction is really the right tool for the situation.
[1] The most detailed of this criticism has been levelled by Rob George (both a practising barrister and Professor of Law at UCL): see here.
