Alex RKTwo recently published decisions of Cobb J have shone a light on the lesser spotted beast of the inherent jurisdiction of the High Court to protect adults who are vulnerable[1] but who do not fall within the scope of the Mental Capacity Act 2005. Both decisions in Wakefield Metropolitan District Council v FH & Anor relate to the same couple; the first dates from 2021, but was not published until very recently, at the same time as the second decision from 2024.
The couple had been married for some sixty years by the time of the first hearing, which resulted in an oral judgment, now transcribed. The wife, FH, had very extensive care needs, which had been provided by her husband, MH, who himself had his own care needs. Cobb J noted (paragraph 4) that “one important agreed fact on the information that I have received is that they deeply love each other and want to be together.” However, in the next paragraph, he identified that “[o]ver a period of time stretching over years, a number of concerns have been raised with the local authority adult social services about the dynamics of the relationship between MH and FH in which it is said that physical and verbal abuse have been a feature. JS [the social worker’s] professional view is that FH is subject to coercion and control by MH, who it is said manipulates her.” FH had been admitted to hospital in circumstances of very considerable distress, having apparently fallen out of bed. Cobb J noted from the audio recording of the Care Line phone call made (it is not clear by whom) that “[w]hat was striking about MH’s response to that situation was that he appeared to show no empathy or care for her in her situation but, on the contrary, demonstrated high levels of verbal abuse of her, both directly to her and at her. It makes, if I may say so, extremely distressing listening” (paragraph 6). It was those circumstances which led to the urgent application being made under the inherent jurisdiction for an order protecting FH and facilitating her move into a care home.
Cobb J identified that:
17. On the evidence that I have read, and I am conscious that of course the evidence that I have read has not been subject to testing or other live scrutiny, and on the submissions that I have heard from the local authority, from Mr Kennedy on FH’s behalf, and from MH himself, I declare myself satisfied that this is a case in which the court could, and indeed should, exercise exceptionally its inherent jurisdiction in respect of FH. The narrative statement of JS, summarising a history of coercion, control and abuse over a number of years, was, I must emphasise, brought vividly and worryingly to life by the content of the audio recording which I heard before the hearing began. That audio recording, in my judgment, revealed an unacceptable and, in some measure, shocking level of intolerance, abuse and lack of empathy and care on the part of MH towards his wife. While the circumstances in which that recording were taken may have been circumstances of very considerable stress and pressure to MH, that does not in my judgment explain or excuse that which I heard, including the language and the offensive names which he called FH during the course of fifteen minutes of fairly unrestrained abuse.
17. In my judgment, FH requires the protection of the court at this stage to ensure that she does not return, at this stage, I emphasise, to the home which she shares with her husband and into his primary care. I am satisfied that the local authority has made out its case for an order which will ensure that FH remains at Dewsbury Hospital until she is fit for discharge, and that upon that stage being reached in her recovery, that she then be transferred to a care home, probably HH Care Home, for the immediate future.
18. I am satisfied that where it is necessary, it is indeed proportionate for modest forms of restraint to be used to ensure that FH is enabled to make that journey and then remain at the care home. I am comforted to know that arrangements will be made for MH regularly to visit FH, subject to him testing negative for Coronavirus through the lateral flow tests, and that short visits will be permitted to enable them to see each other. In the meantime, further assessment can and should be made of her care and support needs so that plans for her return home can be contemplated, evaluated and, as appropriate, implemented.
19. I will authorise Wakefield Metropolitan District Council to convey and place FH at such a care home as I have indicated, because I am satisfied that it is necessary, proportionate and plainly in her best interests. I propose to direct that, within seven days of FH’s placement at an appropriate care home, the local authority shall serve a statement updating the court as to MH and FH’s views, wishes and feelings, whether she has settled, providing details of the care and support FH is in receipt of, and filing an interim care plan for her future care.
By 2023, further proceedings were on foot. In the March 2024 judgment, Cobb J was at pains to emphasise (paragraph 10) that FH had capacity to make the relevant decisions, and to conduct the proceedings. He also emphasised that he had:
in this particular case, at this particular time, […] taken great care to focus on whether there is a need to exercise the inherent jurisdiction, and that if exercising the jurisdiction, I make orders which are both proportionate to the safeguarding issues which lie at the heart of them, and which interfere with the Art.8 rights under the European Convention of Human Rights of FM and of MH only to the limited extent appropriate (paragraph 11).
Sadly, it appeared that the problems which founded the orders made in 2021 had continued, such that:
16. The continuation of the behaviours to which I refer reinforce for me the necessity of protecting FH, so far as this court can do, from the abusive conduct of her husband. In my judgment, a continuation of protective injunctive orders under the court’s inherent jurisdiction remains a proportionate response to the risks about which I have read. I have no doubt at all about the love which FH has for MH, and MH for his wife, but MH’s aggressive conduct as observed by professionals and care staff, his ungoverned temper at times, his interference with the proper provision of care for FH in the care home, render the making of injunctive orders necessary in FM’s best interests. FH rightly accepts that she is a vulnerable person. I can see that for myself and, in this way, the intervention of the court remains utterly justified.
The parties before the court (but not MH, who had not participated) agreed as to the nature of the orders to be made:
18. It is agreed that for as long as supervision and monitoring of MH’s relationship with FH is required at Care Home (Y), or elsewhere in the community within resources and/or other facilities provided by the local authority, the funding of those arrangements under the Care Act 2004 will fall properly to the local authority. It has been agreed today that the Trust will accept responsibility for the funding of supervised or supported contact between FH and MH during any time that FH is accessing their medical services. In the meantime, the plan is that the arrangements for MH to see FH will continue with the supervisor being positioned either at the door, or just outside the door of the room where FH is accommodated, but in the line of sight of the supervisor.
19. The order that I propose to make prohibits MH from removing FH from her place of residence – currently Care Home (Y) – and that order will continue until or unless I discharge it. MH is further injuncted from removing FH from any of the Trust premises, should FH be relocated to one of the Trust premises in the future. The order will prohibit MH from having direct contact with his wife without third party support, as agreed with the local authority, whilst FH is the Care Home or elsewhere within the community, or as agreed with the Mid Yorkshire Teaching NHS Trust in the event she is resident on Trust premises. Those orders are now to be final orders, although of course it will be open to any party, including MH, to apply to vary or set aside those orders on notice to the others.
Comment
Given that the inherent jurisdiction can only be used to fill in a statutory gap, it is perhaps of note that both (relatively brief) judgments do not include consideration of any of the relevant statutes that might be in play (this list being drawn from our updated guidance note on the inherent jurisdiction), including s.42 of the Family Law Act 1996 (non-molestation orders which victims, but not public authorities, can seek), the Serious Crime Act 2015 (s.76: which creates a criminal offence of controlling or coercive behaviour where A and B live together and “are members of the same family”), a Domestic Abuse Protection Notice or Order under the Domestic Abuse Act 2021, a Domestic Violence Protection Order under ss.24-33 of the Crime and Security Act 2010, a Stalking Protection Order under the Stalking Protection Act 2019 or other civil remedy such as the Protection from Harassment Act 1997. As a matter of logic, all these remedies must have been considered and in some way found not to meet the needs of the situation.
In this context, it is also very interesting to read the observations of the Law Reform Commission of Ireland on the use of the inherent jurisdiction – a concept which applies in essentially exactly the same way in Ireland as it does here. In Volume 1 of its recent report on adult safeguarding, it notes that its main advantage is its flexibility (paragraph 1.51), but:
1.53. [t]he inherent jurisdiction also has significant limitations. While this “safety net” is useful, there is a great need for “precision, clarity and certainty”, given the seriousness of the matters at hand. Relying on a statutory framework instead of the inherent jurisdiction would avoid the current “potential for over subjectivity” and ensure greater “transparency, democratic oversight and legal certainty”. Unlike the inherent jurisdiction, a statutory framework allows for clear thresholds and safeguards, ensuring that the rights of those who may be subject to an order are appropriately, and consistently, weighed and considered. Only a statutory framework can establish clear standards and thresholds for intervention by reference to which decisions can be assessed and, if necessary, appealed. There is a strong constitutional interest in requiring that potentially very intrusive powers should be conferred, and delimited, by the Oireachtas [the Irish Parliament]. The use of the inherent jurisdiction to detain individuals also poses problems in light of Article 5 of the European Convention on Human Rights.
1.54. Practically, a statutory framework would also provide greater certainty for relevant professionals in the administration of the care and treatment of persons who are subject to orders currently provided under the inherent jurisdiction. The inherent jurisdiction also necessarily involves recourse to the High Court, which can be a costly and cumbersome process, particularly in comparison to other courts such as the District Court.
[1] This is the term that the High Court uses, as opposed to (for instance) “adults at risk” as per the Care Act 2014 approach.
