23.29A Local Authority v DL, ML, GRL and JP [2011] EWHC 1022 (Fam), (2011) 14 CCLR 441
The court retained an inherent jurisdiction to protect persons who, whilst not lacking mental capacity, were incapacitated from making a relevant decision by reason of constraint, coercion, undue influence or other vitiating factors
Facts: GL and ML were an elderly couple, who at the relevant time did not lack the mental capacity, but whose will was said to have been overborne by their adult son, DL, who lived with them and was said to assault them, rendering them unable to make decisions, such as to tell the son to leave, to maintain contact with family and friends and to move to a care home.
Judgment: Theis J, determining a preliminary issue, reviewed a number of authorities and concluded that the court retained jurisdiction to make protective declarations in a case such as this, notwithstanding the enactment of the Mental Capacity Act 2005:
53.(4) Each case will, of course, have to be carefully considered on its own facts, but if there is evidence to suggest that an adult who does not suffer from any kind of mental incapacity that comes within the MCA but who is, or reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors they may be entitled to the protection of the inherent jurisdiction (see: SA [[2005] EWHC 2942 (Fam)] para [79]). This may, or may not, include a vulnerable adult. I respectfully agree with Munby J in SA at para [83] ‘The inherent jurisdiction is not confined to those who are vulnerable adults, however that expression is understood, nor is a vulnerable adult amenable as such to the jurisdiction. The significance in this context of the concept of a vulnerable adult is pragmatic and evidential: it is simply that an adult who is vulnerable is more likely to fall into the category of the incapacitated in relation to whom the inherent jurisdiction is exercisable than an adult who is not vulnerable. So it is likely to be easier to persuade the court that there is a case calling for investigation where the adult is apparently vulnerable than where the adult is not on the face of it vulnerable’. In the cases I have been referred to the term ‘vulnerable adult’ appears to have been used to include the SA definition, whether the adult in question is vulnerable or not. Obviously the facts in SA were very different to the case I am concerned with. For example, in this case ML and DL have capacity to litigate but that does not, in my judgment, mean that the inherent jurisdiction should not be available to protect ML, once the court has undertaken the correct balancing exercise.
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(8) The mere existence of the jurisdiction does not mean it will always be exercised. Each case will have to be considered on its own facts and a careful balance undertaken by the court of the competing (often powerful) considerations as to whether declarations or other orders should be made. As Miss Lieven QC points out the assumed facts in this case are not accepted by DL and even if they are one of the important considerations for the court to consider are the views of adults concerned; they do not support the orders being sought by the LA. In addition, the terms of the orders being sought in this case are likely to require very careful scrutiny.