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London Borough of Croydon v KR & Anor [2019] EWHC 2498 (Fam)

The case concerned an application by a Local Authority (LA) for an injunction under the Court’s inherent jurisdiction to prevent KR from living together with his wife ST. It was accepted that KR had capacity to make decisions about where to live and who he lived with and he therefore did not fall within the scope of the Mental Capacity Act 2005

KR had suffered a life changing brain injury after a vicious attack.  He has right sided hemiplegia, brain injury and epilepsy.  He is unable to self mobilise, is confined to a wheelchair and only has movement in one arm.  He is completely dependent on carers. 

The LA brought the application because it had safeguarding concerns about KR's care given the couple had a troubled and at times highly antagonistic relationship.  There was a record of problems with alcohol and depression in relation to ST.  There were allegations of domestic abuse between ST and KR and KR was clearly very vulnerable to physical assault.

After evidence from two social workers, the LA made an application to withdraw, which was granted.  However Mrs Justice Lieven gave full judgment to address the issues arising in the case.

The judgment provides a summary of the cases relevant to applications in relation to vulnerable adults with capacity under the inherent jurisdiction (paras 31-44) and an analysis of the Article 8 considerations (paras 45-52).  The Judge identified 3 questions:

i) Did KR fall within the inherent jurisdiction as set out in SA (vulnerable adult with capacity: marriage) [2006] 1 FLR 867 ?

ii) If yes, are the terms of the order justified under Art 8 (2)?  i.e. whether the interference with family life is justified

iii) Are there any less intrusive means which could achieve the legitimate aim of protection of KR's health under Art 8 (2)?

The Judge analysed the evidence and found that by the time of the final hearing, KR did not fall within the SA test.  Even if he had, there would not be justification to make the order because there were less intrusive ways of protecting KR.

In reaching that conclusion, the judge observed that

- Although the MCA 2005 did not apply, the principles articulated in the Mental Capacity Act and code applied equally strongly to determining vulnerability within the meaning of SA [para 52, 63]

- There may be occasions where the inherent jurisdiction could be used in extremely exceptional cases for long-term and permanent orders.  It was not necessarily limited to provision of a "safe thinking space" away from possible coercion to allow the vulnerable person's true decision-making capacity to be re-established so that a decision could be made.  However, use of the inherent jurisdiction to make permanent orders could be difficult to justify in terms of the level of interference with Art 8 rights [para 63]

Summary by Martina van der Leij, barrister, Field Court Chambers

Read the full judgment of London Borough of Croydon v KR & Anor [2019] EWHC 2498 (Fam) via BAILII