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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DL v A Local Authority & Ors  EWCA Civ 253 (28 March 2012)
Cite as:  WTLR 1713,  BLGR 757, (2012) 15 CCL Rep 267,  EWCA Civ 253,  WLR(D) 101,  Fam 1,  2 FLR 511,  CPLR 504,  3 FCR 200,  Fam Law 1454,  LGR 757,  3 WLR 1439,  3 All ER 1064, (2012) 127 BMLR 24
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ON APPEAL FROM
Mrs Justice Theis
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE DAVIS
|- and -
|A Local Authority & Others
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Mr Paul Bowen and Miss Alison Pickup (instructed by Local Authority Legal Services) for the Respondent
Hearing dates : 16 January 2012
Crown Copyright ©
Lord Justice McFarlane:
The assumed facts
"Mr and Mrs L are an elderly married couple. He is 85: she is 90. They live with their son, DL, (who is in his fifties) in a house which is owned by Mr. L. Mrs L is physically disabled. She receives support by way of direct payments and twice daily visits from health and social care professionals commissioned and paid for by the Claimant local authority under its statutory community care duties. At the time that these proceedings were commenced, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) was incapable, by reason of any impairment of or disturbance in the functioning of the mind or brain, of managing their own affairs, and, in particular, both Mr and Mrs L appeared capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves. Mr L has, however, been recently assessed as lacking capacity to make his own decisions and a decision is soon to be reached whether he has requisite capacity to litigate. Mr. L is no longer residing at the family home and it is not known if or when he will return to the family home. Nevertheless the need to resolve the preliminary issue remains and for that purpose it is assumed that both ML and GRL have capacity as to residence and contact with DL for the purposes of s 2 of the Mental Capacity Act 2005.
The local authority is concerned about DL's alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority has documented incidents going back to 2005 which, it says, chronicle DL's behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, and the terms upon which they may visit them, including health and social care professionals providing care and support for Mrs L. There have also been consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL's name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.
The local authority has brought these proceedings to protect Mr and Mrs. L from DL. It has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996.
The local authority acknowledges that, on the information currently available to it, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain. The local authority recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL's behaviour, it remains unclear as to whether he, Mr L, would wish to take steps in opposition to his wife's wishes.
Interim injunctions were made by the President, Wall LJ, on 12 October 2010, ex parte and without notice, restraining the First Defendant from:
(i) assaulting or threatening to assault GRL or ML;
(ii) preventing GRL or ML from having contact with friends and family members;
(iii) seeking to persuade or coerce GRL into transferring ownership of the current family home;
(iv) seeking to persuade or coerce ML into moving into a care home or nursing home;
(v) engaging in behaviour towards GRL or ML that is otherwise degrading or coercive, including (but not limited to): stipulating which rooms in the house GRL or ML can use; preventing GRL or ML from using household appliances, including the washing-machine; 'punishing' GRL or ML, for example, by making GRL write 'lines'; shouting or otherwise behaving in an aggressive or intimidating manner towards them.
(vi) giving orders to care staff;
(vii) interfering in the provision of care and support to ML;
(viii) refusing access to health and social care professionals;
(ix) behaving in an aggressive and/or confrontational manner to care staff and care managers.
The President also made a Harbin v Masterman order inviting the Official Solicitor to investigate ML and GRL's true wishes and to ascertain whether they are operating under the influence of DL in relation to the contact that they have with him.
The Official Solicitor appointed an Independent Social Work Expert, Jeff Fowler, to visit and interview GRL and ML which took place on 10 November 2010 and he produced a written report dated 13 November 2010. Mr. Fowler invited DL to be interviewed during the visit which DL acceded to, however the appointment could not be re-arranged to suit DL's availability and the assessment proceeded without DL(para 2.1)). Mr. Fowler concluded (without the benefit of any assessment of DL's account or evidence), so far as is material, that both GRL and ML are unduly influenced by DL to an extent that their capacity (in the SA sense) to make balanced and considered decisions is compromised or prevented (paras 3.19-3.26). However it was recorded that DL's influence is not so strong that ML is unable to give instructions which reflect her own wishes although they are subject to DL's influence (3.29) and that GRL had resisted pressure from DL (3.30). It was further recorded that neither DL nor GRL meet the criteria set down in s.4 of the MCA 2005 and that they both understand advice which is given to them (3.28). In order for both GLR and ML to regain capacity (in the SA sense) DL must stop behaving in an abusive manner towards GRL , in particular. His report concludes (para 3.34):
"In any event DL must change the way he has behaved towards his parents as this has compromised the extent to which they have the capacity to make all decisions in respect of their lifestyle, living arrangements, personal and inter personal relationships."
Thus, while the Claimant accepts (for the purposes of this preliminary issue) that ML and GRL are not suffering from any impairment or disturbance of functioning of the mind or brain and therefore have capacity to decide as to residence and contact with DL for the purposes of the 2005 Act, Mr. Fowler's preliminary evidence suggests that they have or may have been deprived of capacity to decide those issues due to the undue influence of DL. However it is acknowledged that further evidence will be necessary before this issue can be determined conclusively"
The legal issue
"The central issue in this case is whether, and to what extent, the court's inherent jurisdiction is available to make declarations and, if necessary, put protective measures in place in relation to vulnerable adults who do not fall within the MCA but who are, or are reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent by reason of such things as constraint, coercion, undue influence or other vitiating factor."
The case of Re: SA (Vulnerable adult with capacity: marriage)
'It is now clear, in my judgment, that the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children. The court exercises a 'protective jurisdiction' in relation to vulnerable adults just as it does in relation to wards of court.'
55. A few months before Re C (Mental Patient: Contact)  1 FLR 940, the Court of Appeal had made it clear in In Re T (Adult: Refusal of Treatment)  Fam 95, that the court has jurisdiction to determine whether an apparent consent or refusal of consent is vitiated, for example, by the effects of shock, fatigue, pain or drugs, or because the will has been overborne by the undue influence of another, or by deception or misinformation of a significant kind. As Butler-Sloss LJ said at page 117:
"Although the issues of capacity and genuine consent or rejection are separate, in reality they may well overlap, so that a patient in a weakened condition may be unduly influenced in circumstances in which if he had been fit, he would have resisted the influence sought to be exercised over him."
Staughton LJ made a similar point at page 122 when he said:
"at the time of apparent consent or refusal the patient may not, for the time being, be a competent adult. Her understanding and reasoning powers may be seriously reduced by drugs or other circumstances, although she is not actually unconscious."
56. Lord Donaldson of Lymington MR made some general comments at page 113 which are important in the present context:"When considering the effect of outside influences, two aspects can be of crucial importance. First, the strength of the will of the patient. One who is very tired, in pain or depressed will be much less able to resist having his will overborne than one who is rested, free from pain and cheerful. Second, the relationship of the "persuader" to the patient may be of crucial importance. The influence of parents on their children or of one spouse on the other can be, but is by no means necessarily, much stronger than would be the case in other relationships. Persuasion based upon religious belief can also be much more compelling and the fact that arguments based upon religious beliefs are being deployed by someone in a very close relationship with the patient will give them added force and should alert the doctors to the possibility – no more – that the patient's capacity or will to decide has been overborne. In other words the patient may not mean what he says."
57. Butler-Sloss LJ made much the same point at page 120:"it has long been recognised that an influence may be subtle, insidious, pervasive and where religious beliefs are involved especially powerful. It may also be powerful between close relatives where one may be in a dominant position vis-à-vis the other. In this case Miss T had been during her childhood subjected to the religious beliefs of her mother and in her weakened medical condition, in pain, and under the influence of the drugs administered to assist her, the pressure from her mother was likely to have a considerably enhanced effect. I find it difficult to reconcile the facts found by the judge with his conclusion that the influence of the mother did not sap her will or destroy her volition. The degree of pressure to turn persuasion or appeals to affection into undue influence may, as Sir James Hannen P said in Wingrove v Wingrove (1885) 11 PD 81, 82-83, be very little."
58. These observations reflect Lindley LJ's well-known comment in Allcard v Skinner (1887) 36 ChD 145 at page 183 that "the influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful".
59. In Re G (an adult) (mental capacity: court's jurisdiction)  EWHC 2222 (Fam),  All ER (D) 33 (Oct), the facts so far as material for present purposes were simple. G was a woman of 29 with a history of mental illness. Proceedings under the inherent jurisdiction were commenced on 10 March 2004 at a time when, as it was subsequently established, G lacked capacity. What Bennett J described as a "protective framework" for G, regulating her parents' contact with her, was put and maintained in place by interlocutory orders made on 11 March 2004, renewed on 17 March 2004 and extended on 19 May 2004. By the time of the final hearing on 26 July 2004 G no longer lacked capacity. The reason for this was explained in the medical evidence, which (see paras -) was to the effect that G's capacity had been severely compromised by her will being overborne by her father's powerful character; that prior to the protective framework being put in place the father's ability to overbear G's decision-making processes was very significant; that by contrast the protective regime, which limited the father's access to G, had reduced the impact of his power over her decision-making processes; but that if the protective framework was removed, so that G had unrestricted contact with her parents, this would probably lead to disturbance and a significant deterioration in G's mental state, adversely affecting her capacity.
60. Bennett J's conclusion at para  was that:"If the restrictions were lifted ... it is probable that the situation would revert to what it was prior to March 2004. G's mental health would deteriorate to such an extent that she would again become incapacitated to take decisions about the matters referred to. Such a reversion would be disastrous for G."
61. In these circumstances it was argued that, because G currently had capacity, the court had no jurisdiction to grant any relief. Bennett J rejected the argument and made orders the effect of which was to retain the protective framework in place.
62. Bennett J began his analysis of the law with these powerful observations at paras -:" [Counsel's] submissions seem to me to have serious practical flaws and very undesirable consequences. Both experts acknowledged that but for the court's protective framework G probably would revert to her mental state prior to 10 March, with the consequences I have already referred to. If then I have to dismiss the local authority's application for lack of jurisdiction, that is to say because the local authority has failed to establish G's mental incapacity as of today, the court's protective framework must therefore fall away. Thus, contact between G and her parents would be unrestricted; there would be no control over the father and his conduct vis-à-vis G's mental health, her health care needs and team. It is probable that G's mental health would deteriorate and she would become incapacitated. The local authority in such circumstances might feel obliged to institute proceedings all over again, the court would put into effect another protective framework, G might well recover her capacity leading to the same result in those fresh proceedings. Thus the purpose of the court's inherent jurisdiction in cases such as these would be completely defeated. Further, the logic of [counsel's] submission is, as he acknowledged, that had the court's protected framework not had the impact that, in fact, it did have, and G had remained lacking in mental capacity, the court would have had jurisdiction. Thus, in my judgment, the court's jurisdiction would be entirely dependent on the shifting sands of whether or not G did, or did not, have the requisite mental capacity at the time of the final hearing. I do not find that to be an attractive submission."
63. Having referred to various authorities, and in particular to the judgment of Thorpe LJ in In re F (Adult: Court's Jurisdiction)  Fam 38, Bennett J concluded at paras - as follows:" .... To adopt the sentiment expressed by Lord Justice Thorpe ... , it would be a sad failure were the law to determine that I had no jurisdiction to investigate and if necessary make declarations as to G's best interests to ensure that the continuing protection of the court put in place with effect from 11 March 2004 is not summarily withdrawn simply because she has now regained her mental capacity in respect of the matters referred to, given the likely consequences to G if the court withdrew its protection. If the declarations sought are in G's best interests, the court, by intervening, far from depriving G of her right to make decisions as submitted by [counsel], will be ensuring that G's now stable and improving mental health is sustained, that G has the best possible chance of continuing to be mentally capable, and of ensuring a quality of life that prior to 11 March 2004 she was unable to enjoy.
76. In the light of these authorities it can be seen that the inherent jurisdiction is no longer correctly to be understood as confined to cases where a vulnerable adult is disabled by mental incapacity from making his own decision about the matter in hand and cases where an adult, although not mentally incapacitated, is unable to communicate his decision. The jurisdiction, in my judgment, extends to a wider class of vulnerable adults.
77. It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either (i) under constraint or (ii) subject to coercion or undue influence or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.
78. I should elaborate this a little:i) Constraint: It does not matter for this purpose whether the constraint amounts to actual incarceration. The jurisdiction is exercisable whenever a vulnerable adult is confined, controlled or under restraint, even if the restraint is only of the kind referred to by Eastham J in Re C (Mental Patient: Contact)  1 FLR 940. It is enough that there is some significant curtailment of the freedom to do those things which in this country free men and women are entitled to do.ii) Coercion or undue influence: What I have in mind here are the kind of vitiating circumstances referred to by the Court of Appeal in In Re T (Adult: Refusal of Treatment)  Fam 95, where a vulnerable adult's capacity or will to decide has been sapped and overborne by the improper influence of another. In this connection I would only add, with reference to the observations of Sir James Hannen P in Wingrove v Wingrove (1885) 11 PD 81, of the Court of Appeal in In re T (Adult: Refusal of Treatment)  Fam 95, and of Hedley J in In re Z (Local Authority: Duty)  EWHC 2817 (Fam),  1 WLR 959, that where the influence is that of a parent or other close and dominating relative, and where the arguments and persuasion are based upon personal affection or duty, religious beliefs, powerful social or cultural conventions, or asserted social, familial or domestic obligations, the influence may, as Butler-Sloss LJ put it, be subtle, insidious, pervasive and powerful. In such cases, moreover, very little pressure may suffice to bring about the desired result.iii) Other disabling circumstances: What I have in mind here are the many other circumstances that may so reduce a vulnerable adult's understanding and reasoning powers as to prevent him forming or expressing a real and genuine consent, for example, the effects of deception, misinformation, physical disability, illness, weakness (physical, mental or moral), tiredness, shock, fatigue, depression, pain or drugs. No doubt there are others.
79. I am not suggesting that these are separate categories of case. They are not. Nor am I suggesting that the jurisdiction can only be invoked if the facts can be forced into one or other of these headings. Quite the contrary. Often, indeed, the facts of a particular case will exhibit a number of these features. There is, however, in my judgment, a common thread to all this. The inherent jurisdiction can be invoked wherever a vulnerable adult is, or is reasonably believed to be, for some reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent. The cause may be, but is not for this purpose limited to, mental disorder or mental illness. A vulnerable adult who does not suffer from any kind of mental incapacity may nonetheless be entitled to the protection of the inherent jurisdiction if he is, or is reasonably believed to be, incapacitated from making the relevant decision by reason of such things as constraint, coercion, undue influence or other vitiating factors.
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.
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. That is all.
The decision of Mrs Justice Theis
Local Authority X v MM and KM  EWHC 2003 (Fam)
A Local Authority v A (by her Guardian ad litem); A Local Authority v C  EWHC 978 (Fam)
A Local Authority v Mrs A by her litigation friend, the Official Solicitor  EWHC 1549 (Fam)
LBL v RYJ and VJ  EWHC 2665 (Fam)
LB of Ealing v KS  EWHC 636 (Fam)
"Having considered the detailed written and oral submissions, I have come to the conclusion that the inherent jurisdiction can still be invoked in cases such as this and that what has been termed the SA jurisdiction does survive the MCA and the Code. I have reached this conclusion for the following reasons:
(1) It is accepted prior to the implementation of the MCA that the inherent jurisdiction extended to cases that went beyond issues relating to mental capacity. In appropriate cases, having balanced the competing considerations, the jurisdiction was invoked and exercised with the court making declarations and protective orders (SA supra).
(2) It is accepted that the essence of this jurisdiction is to be flexible and to be able to respond to social needs.
(3) The Parliamentary consideration, prior to the passing of the MCA, did not expressly seek to exclude the court's inherent jurisdiction that had developed at the time. The consideration it did give to adults found to have capacity (sometimes after investigation) did not expressly exclude the court exercising its inherent jurisdiction in relation to adults as described in SA. The SA inherent jurisdiction is a protective jurisdiction that extends beyond dealing with issues on mental incapacity.
(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 (supra) para ). This may, or may not, include a vulnerable adult. I respectfully agree with Munby J in SA at para :
"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.
(5) The continued existence of the SA jurisdiction, following implementation of the MCA, has been re-stated in a number of decisions. Whilst some of the observations may be regarded as obiter (in particular A Local Authority v A (supra) at para ) they have consistently re-affirmed the existence of the jurisdiction. In particular the observations made by Bodey J in A Local Authority v Mrs A (supra) at para , Macur J in LBL v RYJ (supra) para  and Wood J in LB of Ealing v KS (supra) para . I reject the submission by Miss Lieven Q.C. that the observations made by Macur J are in fact a rejection by her of the continued existence of the SA jurisdiction. What she was considering in para  was the fallback submission of the local authority in that case that if the case failed to come within the MCA the court retained a general jurisdiction to make decisions in relation to an adults 'best interests' who were not incapacitated by external forces (in the SA sense). I agree with Macur J when she states at para :
"..the relevant case law establishes the ability of the court, via its inherent jurisdiction, to facilitate the process of unencumbered decision-making by those who they have determined have capacity free of external pressure or physical restraint in making those decision."
As Wood J said in LB of Ealing v KS (supra) Munby J in SA was talking of persons who are deemed not to have capacity in the true sense, and not of persons where a paternalistic authority considers the acts unwise. Although the Official Solicitor was not invited to make any submissions in this case, it is of note that in the letter of instruction from the Official Solicitor to Independent Social Worker, Mr Jeff Fowler, dated 5th November 2010 there was extensive reference to Munby J's judgment in SA.
(6) I agree with the submissions of Mr Bowen, that the obligations on the State under the Convention and the HRA require the court to retain the inherent jurisdiction, as by refusing to exercise it in principle the court is, in effect, creating a new "Bournewood gap". Whilst it is correct that the cases to date regarding any positive obligation on the State (including the LA) arising under Article 8 have concerned cases involving children or adults who lack mental capacity that does not mean, in principle, such positive duties cannot arise in other circumstances. There may be a heightened positive duty in cases concerning children and adults who have mental incapacity. Much will depend on the circumstances of each case and what the proportionate response is considered to be by the LA.
(7) I agree with the submissions of Miss Lieven Q.C. (as supported by the observations of Bodey J in A Local Authority v Mrs A (supra) para 79 and Macur J in LBL v RYJ (supra) para 62) that in the event that I found that the jurisdiction does exist that its primary purpose is to create a situation where the person concerned can receive outside help free of coercion, to enable him or her to weigh things up and decide freely what he or she wishes to do. That is precisely what Munby J ordered in SA. There obviously needs to be flexibility as to how that is achieved, dependent on the facts of each case. That does not mean it can be covered by s 48 MCA, as Miss Lieven Q.C. sought to suggest at one stage in her oral submissions as, in my judgment, s 48 by its express terms is only intended to cover the interim position pending determination of an application. As Munby J observed in SA (para ) in some circumstances it will be necessary to make orders without limit of time.
(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 Q.C. 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."
The argument on behalf of DL
a) The only authority prior to the introduction of the MCA 2005 which indicated that the inherent jurisdiction extended to adults who maintained their mental capacity is limited to one case, namely Re SA. Re SA was not supported by any earlier authority and is therefore to be seen as an isolated decision which is insufficient to bear the weight now put upon it by subsequent decisions, including that of Theis J in this case;
b) The MCA 2005 was clearly intended to provide a comprehensive statutory code for those who lacked capacity;
c) If a case, such as the present, does not fall within the provisions of the MCA 2005, then there is no jurisdiction for the court to make orders controlling the lives of those who do not lack capacity within the meaning of the 2005 Act;
d) To the degree that there is any remaining inherent jurisdiction in this field, it is limited to providing a short period for the individual to be allowed to make his/her own decision, and if appropriate the provision of advice.
"English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d'état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions."
' I do not doubt the availability of the inherent jurisdiction to supplement the protection afforded by the Mental Capacity Act 2005 for those who, whilst 'capacitous' for the purposes of the Act, are 'incapacitated' by external forces –whatever they may be- outside their control from reaching a decision. (See SA (A Vulnerable Adult)  EWHC 2942 @ para 79; A Local Authority and Mrs A 2010 EWHC 1549 @ para 79). However, I reject what appears to have been the initial contention of this local authority that the inherent jurisdiction of the court may be used in the case of a capacitous adult to impose a decision upon him/her whether as to welfare or finance. I adopt the arguments made on behalf of RYJ and VJ that the relevant case law establishes the ability of the court, via its inherent jurisdiction, to facilitate the process of unencumbered decision-making by those who they have determined have capacity free of external pressure or physical restraint in making those decisions.'
a) In l995 the Law Commission's original proposal was for a very widely based jurisdiction designed to protect a "vulnerable person" which was defined to include persons in addition to those in need by reason of mental or other disability;
b) The l995 government response concluded that, given the division of opinion which exists on this complex subject and "given the flexibility inherent in developing case law, the government believes it would not be appropriate to legislate at the present time and thus fix the statutory position once and for all" ["Making Decisions" Cm 4465 1999, para. 20];
c) A joint committee of both Houses of Parliament considering the draft Mental Health Bill described the extant case law in these terms [para. 104]:
"It is the right of competent adults to make decisions concerning their own lives. Such decisions might include where to live, what to wear, what to eat, what to spend money on, who to be friends with and whether or not to see and accept medical advice. The decisions made by an individual at a particular point in time are likely to be influenced by factors relating to that individual and their circumstances. Under our present law, the competence of an adult to make a decision cannot be challenged if there is no evidence of any impairment or disturbance in their mental functioning. No one else can make decisions on behalf of another competent person and to force an alternative, for example by physical means, would be assault. "
d) The joint committee considered extending the legislation to include circumstances such as those in the present case. At paragraph 270 of the Committee Report it is stated:
"Professor John Williams suggested to us another approach to extend the scope of the Bill to cover the lack of capacity to make a free choice as a result of undue influence (or unacceptable pressure). It was recognised there is a precedent in the common law. As Professor Williams acknowledged, drafting such a clause would be "immensely complex" and would have to contain significant safeguards to avoid unnecessary intervention. We do not feel confident in recommending such an approach".
e) The reference to Professor Williams' evidence is to that of Professor John Williams, Professor of Law at University of Wales (Aberystwyth). The transcript of his evidence shows that the reference to precedent in common law is to the case of Re T (Adult: refusal of treatment)  Fam 95 which involved a young woman who had withdrawn her consent to a blood transfusion where there was concern that her decision had been unduly influenced by her mother. The Court of Appeal held that an adult patient's capacity to refuse to consent to treatment would be effective if his doctors were satisfied at the time of his refusal that his capacity to decide "had not been diminished" by a number of factors including "that his will had not been overborne by another's influence". Professor Williams, in describing the category of individuals to whom he considered the Bill might be extended, depicted a situation not dissimilar to the present case in these terms:
"the category in the middle is the most difficult one because there you are dealing with people who have high levels of vulnerability, who may be totally dependent on an individual for care, and of course are open to undue pressure being placed on them to decide. At the moment they would fall outside the Bill. My argument would be that they should be within the Bill, subject to numerous safeguards."
'Although the appeal was argued extremely skilfully by Mr Luba there was little that he could make of the second and third grounds. He suggested that the commencement of the Mental Capacity Act 2005 introduced an exhaustive statutory code which excluded the court's inherent jurisdiction. He advanced no authority for that proposition and the decision of Munby J in Local Authority X v MM & KM  EWHC 2003 (Fam) indicates otherwise (see in particular paragraphs 87, 111 and 167).'
54. 'Not even Mr. Luba's able advocacy on behalf of IC's parents could persuade me that any of these grounds was arguable. I am in no doubt at all that the inherent jurisdiction of the High Court to protect the welfare of incapable adults, confirmed in this court in Re F (Adult: Court's Jurisdictions)  Fam 38 survives, albeit that it is now reinforced by the provisions of the Mental Capacity Act 2005 (the 2005 Act). I am also in no doubt that a combination of the inherent jurisdiction and the provisions of the 2005 Act is apt to confer jurisdiction on the High Court to make orders about where IC should live, including the decision as to whether or not it is in his interests to go and live in Bangladesh. Mr. Luba's alternative propositions, based on his default position that the jurisdiction existed, seemed to me equally unarguable.
55. The judge's approach to the prospective exercise of his jurisdiction is contained in paragraphs 110 onwards of his judgment. At paragraphs 119 to 121, having cited extensively from the decision of Munby J in Re PS (An adult) [ 2007] EWHC 623, the judge says:-
"119. I respectfully agree with the observations of Munby J, and, where it is necessary, lawful and proportionate I consider that this court can exercise its inherent jurisdiction in relation to mentally handicapped adults alongside, as appropriate, the Mental Capacity Act 2005. Consistent with long-standing principle, the terms of the Statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the Statute or any supplementary regulatory framework
120. When considering the issue of the court's powers (either under the 2005 Act or under the inherent jurisdiction) to inhibit the removal of IC from the jurisdiction, and thus to intrude upon the Article 8 rights which he has, and which his parents and siblings also have, under the Convention it is my judgment that this court should be extremely cautious before making an order the effect of which is to inhibit, or at times prohibit (when the return to Bangladesh either temporarily or permanently) the enjoyment of family life and the continuance of his residence with them, but is not prevented from so doing where the circumstances demand it for the protection of the vulnerable.
121. It is the submission of Mr. Knafler (counsel for the parents) that the Mental Capacity Act provides a statutory code of such a comprehensive and complex nature that it has impliedly negated the inherent jurisdiction of the High Court as exercised under common law. He submits that if there is a gap in the legislation, the common law should not step in to fill it. No part of the 2005 Act deals with the issue of preventing the mentally incapacitated person from leaving the country. I have already given my view on that passage of the Guidance issued pursuant to the provisions of sections 43 and 44 of the Act, and that in my judgment, save where to do so would be demonstrably inconsistent with the will of Parliament, the inherent jurisdiction remains alive, in appropriate cases, to meet circumstances unmet by the scope of the legislation. That is not, to state the obvious, an invitation to a court so to do unless it is lawful, necessary and proportionate so to do."
56. In my judgment, the judge's approach in these paragraphs, and in this section of his judgment generally, cannot be faulted, and any appeal based on grounds 2 and 3 would stand no reasonable prospect of success.'
a) Under constraint; or
b) Subject to coercion or undue influence; or
c) For some other reason deprived of the capacity to make the relevant decision or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.
's 2(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.'
(2) No court shall exercise the High Court's inherent jurisdiction with respect to children—
(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;
(b) so as to require a child to be accommodated by or on behalf of a local authority;
(c) so as to make a child who is the subject of a care order a ward of court; or
(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
(3) No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court.
(4) The court may only grant leave if it is satisfied that—
(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.'
's 63R(1) This Part does not affect any other protection or assistance available to a person who:
(a) is being, or may be, forced into a marriage or subjected to an attempt to be forced into a marriage; or
(b) has been forced into a marriage.
(2) In particular, it does not affect:
(a) the inherent jurisdiction of the High Court; …'
' … where it is necessary, lawful and proportionate I consider that this court can exercise its inherent jurisdiction in relation to mentally handicapped adults alongside, as appropriate, the Mental Capacity Act 2005. Consistent with long-standing principle, the terms of the Statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the Statute or any supplementary regulatory framework.'
Lord Justice Davis :
"In my opinion where the courts have established a general principle of law or equity, and the legislature steps in with legislation in a particular area, it must, unless showing a contrary intention, be taken to have left cases outside that area where they were under the influence of the general law. To suppose otherwise involves the conclusion that an existing jurisdiction has been cut down by implication, by an enactment moreover which is positive in character…rather than negative."
Lord Justice Maurice Kay :