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Re SA [2005] EWHC 2942 (Fam)

High Court: Munby J (15 December 2005)

Grant of injunctive relief and protective measures under the Court's inherent jurisdiction to protect the interests of a vulnerable adult.

This case concerned SA, an adult from a Pakistani Muslim family, who was profoundly deaf, with no speech or oral communication and communicated by British Sign Language. The local authority became concerned in July 2005 that SA might be taken by her family to Pakistan to be married there to some unknown person contrary to her wishes. The local authority made an ex parte urgent application to make SA a ward of the court when she was still a minor. The final hearing on the application under the court's inherent jurisdiction was heard 9 days before her 18th birthday.

The expert evidence demonstrated that SA had difficulty understanding verbal information, and was only able to comprehend information if it was presented in British Sign Language. Therefore whilst she was not susceptible to suggestion she was easy to mislead. The expert investigated the concept of marriage with SA and reported she had a clear and accurate understanding of marriage and the effects of a sexual relationship. Whilst the expert was of the opinion that SA had capacity to understand the general concept of marriage her level of understanding reduced her capacity to understand the implication of a specific marriage. The evidence concluded that if SA were to enter a marriage where she could not communicate with her Husband or return to UK it was highly likely she would be extremely distressed and isolated. SA's wishes, as conveyed to the expert and her guardian, stated she wished to marry but was concerned that her Husband had to speak English and be prepared to live in this country.

The Local Authority and guardian believed SA needed the continuing protection of the court and accordingly submitted an order in flexible terms that would ensure SA was properly informed and in a manner she could understand about any specific marriage before entering into it. SA's father did not give evidence, yet her mother indicated no objection to the application.

Since the expert evidence established that SA had the capacity to marry this case raised the interesting question of whether the inherent jurisdiction in relation to adults could be exercised for the protection of vulnerable adults who do not lack capacity.

Held, that the court has inherent jurisdiction in relation to SA to grant the relief sought, despite the experts' findings that SA had the capacity to marry.

On the facts it was highly likely that those making any proposals for SA's marriage would not have the ability to know what her response was nor answer her questions. If SA were to enter a marriage where her Husband was unable to communicate with her and she was placed outside the UK there was significant risk to SA's future wellbeing and mental health. SA was plainly a vulnerable adult. The Court had every reason to believe that SA may be disabled from making a free choice. Therefore the court had inherent jurisdiction. Even though she had reached majority, the court was satisfied that she needed some element of continuing protection in relation to marriage. The order proposed ensured that any arrangements for marriage would be made through British Sign Language so that SA would be able to understand and give her consent to the specific marriage being arranged. This order would adequately protect SA's private life and thus give effect to the court's duties under Article 8. Further it would ensure she could exercise her right to self-determination and right to marry under Article 12. The court considered its steps would protect, support and enhance SA's capacity to control her own life and destiny in the way she would wish.

Munby J considered that the nature of the inherent jurisdiction was indistinguishable from well-established parens patriae or wardship jurisdiction in relation to children. He noted that the jurisdiction must evolve in accordance with social needs and social values. The Court considered that if an adult child can have recourse to habeas corpus if kept confined, controlled or under restraint then equally recourse can be had to the inherent jurisdiction. As such the jurisdiction is no longer confined to cases where the vulnerable adult is disabled by mental incapacity from making his own decision and cases where he is unable to communicate his decision. The cited authorities demonstrated that the inherent jurisdiction could be exercised in relation to a vulnerable adult who is or is reasonably believed to be either (i) under constraint or (ii) subject to certain 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 giving real and genuine consent. The common thread is that a vulnerable adult is, or is reasonably believed to be, deprived of the capacity to make the relevant decision or disabled from making a free choice or incapacitated or disabled from giving a real and genuine consent.

Munby J gave a descriptive, albeit not definitive explanation of a vulnerable adult as a person, whether or not mentally incapacitated, whether or not suffering from mental illness or disorder, is or may be unable to take care of himself or unable to protect himself against significant harm or exploitation or deaf, blind or dumb or substantially handicapped by illness, injury or congenital deformity. The Court emphasised that the inherent jurisdiction is not confined to this category of person. However this category is more likely to fall into category of the incapacitated in relation to whom the inherent jurisdiction is exercisable.

The court noted that its powers under the inherent jurisdiction were very similar to those available in wardship proceedings. Accordingly the court could make interim orders, give directions to ascertain whether the adult is vulnerable and his or her wishes, grant declaratory relief, injunctive relief, tipstaff orders, and enable third parties to take protective steps in relation to incapacitated adult. The Court is to exercise these powers by reference to incompetent adult's best interests.

Finally the Court considered that a local authority is not prevented from commencing inherent jurisdiction proceedings as anyone with a genuine and legitimate interest in the welfare of the individual in question has locus standi. Furthermore in relation to a child there is nothing to prevent a local authority commencing wardship proceedings or proceeding under the inherent parens patriae jurisdiction in an appropriate case. Where the child is subject to a care order the local authority can only bring proceedings under the inherent parens patriae jurisdiction. In all cases concerning children the local authority must obtain permission of the court to invoke the inherent jurisdiction (including wardship proceedings).

Order accordingly.

Digest prepared by Lynsey Cade-Davies

Read the full text of the judgment here