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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> The London Borough of Wandsworth v M & Ors (Rev 2)  EWHC 2435 (Fam) (03 October 2017)
Cite as:  WLR(D) 648,  COPLR 71,  1 FCR 670,  1 FLR 919,  EWHC 2435 (Fam),  4 WLR 180
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Strand, London, WC2A 2LL
B e f o r e :
| The London Borough of Wandsworth
|- and -
Rachel Gillman (instructed by David Tagg & Co) for the first Respondent
Lucy Sprinz (instructed by Creighton & Partners) for the second, third and fourth Respondents
Hearing dates: 14, 15, 16, 17 August 2017
Crown Copyright ©
Mr Justice Hayden :
"What is more, HHJ Tolson QC proceeded to make his evaluation of M's case which challenged that the necessary 'threshold' had been crossed and opposed the making of a care order in respect of the boys, on the basis that the evidence against her had been established. In fact, it was untested and disputed."
"It is entirely understandable that this judicial approach raised the collective hackles of all parties. The parties' united stance in this appeal demonstrates an objective unease at the lack of fairness in the process. The burden of proof rested on the local authority throughout, not only in relation to establishing the threshold for the making of statutory orders but also that the intervention in the family's life proposed in the care plans was necessary and proportionate."
"In this case I have had little hesitation in concluding that the proceedings were not fair to M or the children. I am satisfied that the Judge failed to accord to M her Article 6 rights to a fair hearing, and in all the circumstances fell short of safeguarding the procedural and substantive Article 8 rights of the children as provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms."
|1(a)||The children have suffered neglect, appearing unwell, fatigued, with body odour and old, ripped and ill-fitting clothes.
|1(b)||The children have suffered physical and emotional harm attributable to stress, inadequate food and a failure by M to cause them to attend medical appointments and administer medication.
|1(c)||The children have suffered neglect attributable to chaotic, untidy and unclean living conditions.
|1(d)||The children have suffered neglect and a risk of physical harm attributable to M failing to allow housing officers access to their accommodation on various occasions including 22.06.15, 10.11.15, 12.11.15 and 10.12.15.
|1(e)||The children have been at risk of physical harm due to a lack of appropriate food, exercise, outdoor activity and unsafe and unhygienic home conditions.
|2(a)||The children have been at risk of emotional harm due to M's failure to obtain suitable medical/professional help.
|1(b)||The children have been at risk of emotional harm due to being anxious, withdrawn, extremely nervous, watchful and afraid during visits by social workers and believing there was no purpose to attending school, leaving the home or socialising with others.
|2(c)||M has failed to ensure that the children's general and mental health, developmental and emotional needs were met.
|2(d)||The children have suffered emotional harm from their environment: lack of stimulation; lack of access to normal childhood experiences; and living as isolated recluses.
|3(a)||All three children have missed school/adequate educational provision.
|3(b)||C was withdrawn from school completely in February 2015. When at school, he had a poor diet, exhibited withdrawn and anxious behaviour and declined attendance.
|3(c)||A was withdrawn from school completely in July 2014. Prior to that, his attendance was extremely low. When at school, he exhibited anxiety, low weight, poor diet, panic attacks and stomach problems. M failed to follow recommendations to improve his educational provision.
|3(d)||J ceased to attend school in 2015. When at school, he exhibited a poor diet and poor presentation.
|3(e)||M caused the children to take the view that education was not important.
|3(f)||M failed to ensure that the children accessed appropriate education and their development has consequently been seriously affected.
|4(a)||M failed to allow the children to attend school, socialise with other children or extended family members, play outside or go to activities.
|4(b)||M left the children in the care of their older sibling N, who had learning difficulties and a developmental age of much younger than an adult.
|4(c)||M failed to provide reasonable guidance to J and/or failed to supervise his access to inappropriate material, causing his educational development to be impaired.
|4(d)||As a result of the children's isolation, the children's social and emotional development and functioning has been harmed.
|5(a)||From 25 August 2015, M failed to allow professionals entry to the home or access to the children.
|5(b)||M has been verbally aggressive, physically intimidating and threatening towards professionals.
|5(c)||M has mental health issues severely restricting her from meeting the children's needs and causing them significant harm.
|5(d)||M has demonstrated a lack of insight into the effect of her parenting and the home conditions on the children.|
"…Getting specific information from her was very difficult, as she tended to talk in generalities. She did not appear anxious or depressed. Of those people that she was or had been close to, she only spoke in superlatives and seemed incapable of having any mixed feelings or critical thoughts about them. On the other hand, in relation to professionals whom she felt have been critical of her, such as Social Services, she talked in very angry tones. At these times, she could seem paranoid in the sense that she attributed to them malicious motives for their actions. She was quite unable to see that they might have been acting in a professional or caring fashion. These paranoid ideas are not delusional and seemed to be a consequence of her fear of an authority that can act in a way that she sees as being against her interests. When she does not feel threatened in a relationship, she can present as both friendly and warm. These different responses may explain why she has been perceived very differently by her GP and Social Services."
"…This condition is life long, and will have affected her parenting style from the children's birth. [M] has a little understanding of children's physical, behavioural, and educational needs. In practice, however, evidence from the court bundle and the children's presentation on reception into care suggest that she was unable to maintain a clean home environment or to promote the children's physical self-care such as brushing teeth, keeping clean, or providing themselves with food. For example, on reception into care at the age of 16 [J] had no idea how to use money or make his own breakfast. In terms of their behavioural needs she appears to have been unable to set boundaries on them, and in terms of education, though she values this, she was unable to promote their school attendance or the development of relationships with teachers or peers that might promote this. "
"In addition, M has no understanding of social and emotional development, and therefore is unable to appreciate others' concerns about her children's severe disturbance in these areas. From the beginning, she has been unable to develop her children's capacity to identify and regulate their own feelings. When the children were in her care she was unable to help them with their communication difficulties, their difficulties in social relationships and their consequent isolation. All three children assessed for our original report showed very serious deficits in their capacity to think about their own internal states of mind, or to communicate or manage their feelings."
"'[the boys] formed a group identity in which they saw themselves as intellectually superior and separate to the rest of the world… to varying degrees, this experience has massively compromised their ordinary emotional, social, behavioural and educational development… what is evident is the level of varying degrees of disturbance. In our opinion, this 'cult mentality' could not have developed if these brothers had been cared for in an ordinary parental way. By this we mean that the boys have experienced an almost complete absence of supervision, ordinary boundaries, or a relationship with a parent who has actively helped them make sense of themselves and the world. In addition, they clearly share their [mother's] mistrust'"
i) A 'has settled in extremely well and he wishes to remain there until he is 18 years of age'
ii) 'A is in year 10 and attends school… A thoroughly enjoys school and the PEP held on the 01/12/2016 was extremely positive. A has excellent attendance at school at 100%. A is achieving academically and is on target to achieve C+ in his GCSE's. He speaks about going to university and is definitely capable to do so. He has been nominated for a University Taster trip to Oxford and Cambridge';
iii) 'A has made friends at school and is reportedly very popular with his peers';
iv) 'A has lost weight and become physically fitter over the past year. He enjoys going out on walks, jogging and gardening. He is also enjoying PE at school… A's enuresis is now resolved and he is no longer taking Desmopressin. A has a good personal hygiene routine, he takes daily showers and brushes his teeth twice a day';
v) 'C's attendance [at school] is excellent and he states he enjoys school very much. C is continuing to achieve academically; he is on target in all of his subject [sic].'
vi) 'C is healthy, active and eating a well balanced varied diet. He sleeps well and is able to concentrate in school'.
vii) 'There is an improvement in [C's enuresis] and there has been no bed wetting for the past 2 months'.
"'[A]is making fantastic progress against his targets, I am very happy to see 100% attendance, very few can say they have done this. [A]'s work ethic has clearly paid off; I would encourage him to come back in September with the same determined attitude. Well done!'"
Ms Sprinz contends this speaks volumes as to A's improvement. I agree.
41. In questions about the risk to him going home C identified that he could be negatively influenced by his brothers, his education would be affected. He said it was kind of depressing if J returned home as nothing would change his or [N's] views. Even if the risks he identified could be mitigated or managed he does not want to be there.
42. With regard to sibling contact [C] would like to see his brothers at their placements twice a year. I asked what if [J] were to return home and he responded that he would not see [J] in that event. He does not want to come to Wandsworth and he feels [J] would not travel to see him. [C] clarified that when he was talking about contact with his brothers he was not referring to N as he knows he will not leave the house so there is no point is asking. [C] would like to have contact with [J] before he returns home and I have already raised this with the Social Workers and placement to try and get a contact to happen in the week beginning 14th August.
a) [J] has an extremely poor ability to recognise any emotional state; for example when it was suggested to him that he appeared 'sad', he had to look this up on the internet. He does not acknowledge any feelings about his situation or his relationship to others. When more in touch with feelings, he appears to have extremely low self-esteem, thinking that he cannot be liked or cared for. When more defended against these feelings he expresses contempt for others. It offers some hope that his narcissistically defensive stance of superiority can, at times, break down, and he can express some vulnerability.
b) [J] defends himself against traumatic, frightening situations by avoiding them. For example he cannot remember anything before the age of seven, and his memory of the events surrounding his leaving the foster home is extremely limited. Everything outside his home was seen as frightening, and he avoided this by staying indoors. He depersonalises most feelings, saying for example, "it's logical to miss someone who has been helpful." He is unable to tolerate any feelings of dependence, and denies his need for anybody when asked. His sudden exposure (when removed to a foster placement) to more ordinary family life, in which people attempted to engage him in relationships, was experienced as extremely traumatic, and in this context it is unsurprising that he appeared to suffer an emotional breakdown when he walked out of the placement in a fugue-like state. In emotional terms, [J] is functioning better in his current residential placement, where fewer demands are placed upon him and there is some sensitivity to the severity of his difficulties in relating to the world. While he was in the environment of his home, [J] was able to avoid the realities of preparing for life as an adult. He explicitly lacks any concept of a future in which he functions in the real world. This has implications for his future care, in that if he is confronted with this too quickly he may become more, rather than less, disturbed. [J] must be seen as an extremely vulnerable individual who is seriously disabled in relation to coping with the ordinary demands of everyday life in almost all its aspects.
c) [J] refers to his M… …as 'stupid', and shows considerable contempt ... He is very clear about not wanting to go back to live with his [M]. He is attached to his siblings, but not as separate psychological beings who may not share his opinions or thoughts. He sees his aunt Sharon in a similar way, in that "it's like being with [his] siblings, she's just not as intelligent." He defends himself against the need for a caregiver by seeing himself as all-knowing and more intelligent than anyone else. It is likely that [J] has developed this way of functioning in the absence of any reliable caregiver or a parent who helped him face the world. [J]'s development has been greatly compromised in addition by the narcissistic cult that developed between himself and his siblings that replaced any ordinary attachment relationship.
d) [J] presents as an intelligent and articulate individual. He is not currently attending school, and has missed a very significant amount of education. By his own account there is no one as intelligent as him, and he finds it difficult to tolerate the dependent relationship that learning from others entails. His loss of memory is quite striking, but appears to be linked to his emotional state, in that it seems to be related to his defending himself against events that he has experienced as traumatic. Because he has spent so long out of school, and spends his time accruing information via Wikipedia, his cognitive functioning has not been enabled to develop in an ordinary way, neither has it been tested in the real world.
e) It is quite likely that [J] would meet the criteria for diagnosis with an Autistic Spectrum Disorder. He has a very poorly developed theory of mind, is rigid in his thinking, displays quite idiosyncratic use of language, and has great difficulty with social relationships. However, he makes good eye contact and does not appear to have obsessive rituals of any kind, or any sensory difficulties. The deficits referred to above could also be attributed to severe neglect; in other words the lack of an ordinary reliable caregiver who has helped [J] relate to and make sense of the world…
"I put the scenario to him that after nearly two years of being away from home and a year of not speaking to his [mother] or [N] he would just pitch up on the doorstep to resume his life there. This seemed quite reasonable to [J] and he did not feel he needed to speak with his [mother] or [N] and he could adapt once he is home. Even if he needed a bed or wardrobe provided he would not want the Local Authority to be involved to assist him. I don't believe [J] was being at all facetious and I also don't believe that he has been having any surreptitious communication with his [mother] or siblings that would have paved the way for any reunion. His inability to weigh up the pros and cons of the choices facing him was concerning.
"There should be a slow and gradual exposure to external reality, including social relationships and education, so that [J] very slowly becomes accustomed to this and able to manage. To what extent he will be able to make progress in this is currently unknown. There are one or two hopeful indicators… …but it is possible that his personality structure has become so rigid as to make him feel unable to adapt and learn to become an independent, autonomous adult with a meaningful relationship to the world. "
'… there is a space between an unwise decision and one which an individual does not have the mental capacity to take and … it is important to respect that space, and to ensure that it is preserved, for it is within that space that an individual's autonomy operates.'
(1)The following principles apply for the purposes of this Act.
(2)A person must be assumed to have capacity unless it is established that he lacks capacity.
(3)A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4)A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5)An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6)Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.
People who lack capacity
(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)It does not matter whether the impairment or disturbance is permanent or temporary.
(3)A lack of capacity cannot be established merely by reference to—
(a)a person's age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
Power to make declarations
(1)The court may make declarations as to—
(a)whether a person has or lacks capacity to make a decision specified in the declaration;
(b)whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
(c)the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2)"Act" includes an omission and a course of conduct.
Interim orders and directions
The court may, pending the determination of an application to it in relation to a person ("P"), make an order or give directions in respect of any matter if—
(a)there is reason to believe that P lacks capacity in relation to the matter,
(b)the matter is one to which its powers under this Act extend, and
(c)it is in P's best interests to make the order, or give the directions, without delay.
(1)In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a)the person's age or appearance, or
(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3)He must consider—
(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b)if it appears likely that he will, when that is likely to be.
(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6)He must consider, so far as is reasonably ascertainable—
(a)the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b)the beliefs and values that would be likely to influence his decision if he had capacity, and
(c)the other factors that he would be likely to consider if he were able to do so.
(7)He must take into account, if it is practicable and appropriate to consult them, the views of—
(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
(b)anyone engaged in caring for the person or interested in his welfare,
(c)any donee of a lasting power of attorney granted by the person, and
(d)any deputy appointed for the person by the court,
as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).
(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—
(a)are exercisable under a lasting power of attorney, or
(b)are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.
(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.
(10)"Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.
(11)"Relevant circumstances" are those—
(a)of which the person making the determination is aware, and
(b)which it would be reasonable to regard as relevant.
36. What is required, in my judgment, is simply sufficient evidence to justify a reasonable belief that P may lack capacity in the relevant regard. There are various phrases which might be used to describe this, such as "good reason to believe" or "serious cause for concern" or "a real possibility" that P lacks capacity, but the concept behind each of them is the same, and is really quite easily recognised.
"37. I therefore accept Mr Cragg's submission that the "gateway" test for the engagement of the court's powers under s 48 must be lower than that of evidence sufficient, in itself, to rebut the presumption of capacity. If and insofar as this was the test applied by the District Judge (as seems to have been the case), this was incorrect."
38. If the learned District Judge did not in fact ask herself whether the evidence before her was enough to rebut the presumption of capacity, but applied some lesser test, did she nonetheless apply too high a test? In my judgment she did, because it appears that she regarded nothing less than the positive opinion of a specialist medical practitioner to the effect that F did lack the relevant capacity as being sufficient to found her jurisdiction even to direct a psychiatric assessment of F."
"43. A lower threshold for engagement of the court's powers under s 48 is not at all inconsistent with the emphatic approach of the Mental Capacity Act 2005 that every adult is to be treated as entitled to make his own decisions, and is not to be interfered with in that regard without good reason to suppose that he is vulnerable through lack of capacity. The jurisdiction under s 48 has two stages, and, in my judgment, it is the second stage rather than the first which provides the real protection for P against undue interference with his affairs and his right to make his own decisions."
"44. The proper test for the engagement of s 48 in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made. Such action can include not only taking immediate safeguarding steps (which may be positive or negative) with regard to P's affairs or life decisions, but it can also include giving directions to enable evidence to resolve the issue of capacity to be obtained quickly. Exactly what direction may be appropriate will depend on the individual facts of the case, the circumstances of P, and the momentousness of the urgent decisions in question, balanced against the principle that P's right to autonomy of decision-making for himself is to be restricted as little as is consistent with his best interests. Thus, where capacity itself is in issue, it may well be the case that the only proper direction in the first place should be as to obtaining appropriate specialist evidence to enable that issue to be reliably determined."
"46. To my mind, the unclear situation certainly suggested a serious possibility that F might lack capacity in relation to decisions about her own care needs, whether temporarily or on a more long term basis. That possibility was also, in my judgment clearly sufficiently serious, or real, that the court was entitled to take jurisdiction under s 48. The obvious matter needing determination was, in particular, whether F's attitude to her care arrangements did indeed stem from lack of capacity in that regard or not. The case therefore invited a direction appropriate to the circumstances, to enable this issue to be resolved with dispatch, even though the situation might not have been serious enough to justify making any further direction or order with regard to F's living conditions at that stage. ."
"12. I should say that the jurisdiction to make such declarations were considered in the case of Re: F (Mental Capacity: Interim Jurisdiction)  2 FLR 28 which established or sets out the proper test. It indicates that the evidence required to make an interim declaration under section 48 is at a lower threshold than the evidence required to make a final declaration and that the proper test in the first place is (a) whether there is evidence giving good cause for concern that the person might lack capacity and (b) when that was raised as a serious possibility, the court should take and decide what action, if any, was in the person's best interests before a final determination of his or her capacity could be made. "
"23. Section 48 of the Mental Capacity Act 2005 allows the court, pending the determination of an application, to make an order if there is reason to believe that IB lacks capacity, no more, no less at this stage. "
24.The much lower threshold test in relation to interim declarations were well in mind, as is exhibited by the judgment of Her Honour Judge Carr. On the papers that I have seen, according to Judge Carr's judgment and given the [M]'s own submissions as to the nature of IB's disability, such an interim declaration was not only correct, but inevitable.
Short judgments given in Applications for Permission to Appeal are rarely, if ever, regarded as citable authorities. King LJ, is here reciting only what she considers to be uncontroversial law, she plainly did not regard herself as endorsing any formulation of the test. The gateway Judge in the Court of Appeal is directing him or herself only to the relevant criteria relating to permission to appeal. That is why such judgments are not to be regarded as citable authorities.
"The judge was, therefore, amply satisfied that the test under Re: F was satisfied, saying:"
i. "It is absolutely clear and plain that the test was amply satisfied on any basis, in fact, even on what the M has to say in that she accepts that her daughter is autistic, that she will not do things and cannot do things. So even what M submits to me, it is absolutely plain that section 48 is satisfied."
"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."
A conclusion that an individual lacks capacity on a given issue may have a profound impact on his liberty, both physically and intellectually. J is, as I have recorded above, jealous to guard both his intellectual and emotional freedom. It is only right that the Court should do so with similar vigilance.
"who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation".
Mr Justice Munby (as he then was) defined a vulnerable adult in the context of the inherent jurisdiction in the following terms in Re SA (Vulnerable Adult with Capacity: Marriage)  1 FLR 867:
" 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."
"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."
"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."
"It will be noticed that I have referred to the inherent jurisdiction as being exercisable not merely where a vulnerable adult is, but also where he is reasonably believed to be, incapacitated. As I have already pointed out, it has long been recognised that the jurisdiction is exercisable on an interim basis "while proper inquiries are made" and while the court ascertains whether or not an adult is in fact in such a condition as to justify the court's intervention. That principle must apply whether the suggested incapacity is based on mental disorder or some other factor capable of engaging the jurisdiction. As Singer J put it in Re SK (Proposed Plaintiff) (An Adult by way of her Litigation Friend)  EWHC 3202 (Fam),  2 FLR 230, at para , and I agree, the court has power to make orders and to give directions designed to ascertain whether or not a vulnerable adult has been able to exercise her free will in decisions concerning her civil status"
"I do not accept that the jurisdiction described by the learned judge is extensive and all-encompassing, or one which may threaten the autonomy of every adult in the country. It is, as Mr Bowen submits and as the judgments of Munby J and Theis J demonstrate, targeted solely at those adults whose ability to make decisions for themselves has been compromised by matters other than those covered by the MCA 2005. I, like Munby J before me in Re SA, am determined not to offer a definition so as to limit or constrict the group of 'vulnerable adults' for whose benefit this jurisdiction may be deployed. I have already quoted paragraphs 76 and 77 from the judgment of Munby J (see paragraph 22 above). I am entirely in agreement with the description of the jurisdiction that is given there. "
"The appellant's submissions rightly place a premium upon an individual's autonomy to make his own decisions. However this point, rather than being one against the existence of the inherent jurisdiction in these cases, is in my view a strong argument in favour of it. The jurisdiction, as described by Munby J and as applied by Theis J in this case, is in part aimed at enhancing or liberating the autonomy of a vulnerable adult whose autonomy has been compromised by a reason other than mental incapacity because they are (to adopt the list in paragraph 77 of Re SA): "
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.
"I do not regard the Re SA decision as a one off determination, which is unsupported by earlier authority and not to be followed. As Munby J demonstrates in his thorough review of the earlier case law, the organic development of the inherent jurisdiction, following its rediscovery by the House of Lords in Re F (Mental Patient: Sterilisation)  2 AC 1, had lead to decisions, particularly those of Re T and Re G (above), which moved away from cases where the individuals plainly lacked mental capacity to take a particular decision themselves. The fact that the subject matter of the cases related to medical treatment, rather than some other class of decision, cannot affect the principle; either the jurisdiction exists or it does not. The question of the class of decision to which any orders are directed will be a matter of application of the jurisdiction, and of proportionality, dependent on the facts of any given case. "
"For the reasons given by Munby J at paragraph 77 and elsewhere in Re SA, it is not easy to define and delineate this group of vulnerable adults, as, in contrast, it is when the yardstick of vulnerability relates to an impairment or disturbance in the functioning of the mind or brain. Nor is it wise or helpful to place a finite limit on those who may, or may not, attract the court's protection in this regard. The establishment of a statutory scheme to bring the cases in this hinterland before the Court of Protection would (as Professor Williams described) represent an almost impossible task, whereas the ability of the common law to develop and adapt its jurisdiction, on a case by case basis, as may be required, may meet this need more readily."
"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".