I am not hostile to the common law, or to the inherent jurisdiction of the courts with regards to vulnerable adults, which forms part of the common law. For those unfamiliar, the bigger picture looks something like this. Judge-made law goes back a long way in time, and judges were deciding what the law was before the era of detailed legislation. The common law is the law emerging from judges’ caselaw, but in particular on subjects where legislation does not provide an answer. Some common law is old – thus murder, for example, is a common law offence. Other common law is newer, addressing lacunae that legislation does not.
The inherent jurisdiction specifically is the jurisdiction of the court to make decisions with regard to vulnerable adults. Before the Mental Capacity Act, this included adults who lacked capacity; since the Act, it has been held to continue in respect of those adults who have capacity.
Critics of the inherent jurisdiction tend to dislike what seems to be unfettered power in the hands of judges. A reason I am not hostile is that the principle of the supremacy of legislation and the power to legislate away the common law is quite clear. The inherent jurisdiction simply enables a judge to do justice where otherwise he or she would be required to permit an injustice, for want of legislation.
These statements are, of course, at a level of some abstraction. Continuing at that level, one further thing that I think matters is the question of checks and balances. The authority of legislation derives from its coming from the legislature, which have a democratic mandate. Frequently, Parliamentarians criticize any interference that they say lacks a democratic mandate. But just as there is a problem with judges having unchecked power, there is also a problem with legislators having unchecked power: democracy favours the interests of the franchised over the disenfranchised, the majority over the minority, the short term over the long term. Checks upon anyone having unfettered power matter.
But the subject of this blog is the inherent jurisdiction in Parker J’s hands. The immediate inspiration is my dislike of her ruling in the case of PB, Re  EWCOP 14 (21 March 2014) which has recently been published. Reading the case, I was reminded that this was the same judge as ruled in another case I dislike last year, A Local Authority v C  EWHC 4036 (Fam) (16 September 2013). In both cases, my concern is about dangerous extensions of the scope of the inherent jurisdiction. Put them together, and my argument is: the inherent jurisdiction is not safe in Parker J’s hands.
1. A Local Authority v C – the unborn child
In last year’s case, Parker J made an Order authorising the removal of a baby at birth, that Order being made before the birth. The mother was not only unaware of the proceedings, she was also not represented by the Official Solicitor, Parker J having determined that the mother must be unaware of the proceedings, and the Official Solicitor might consider it professionally necessary to inform her of them. Since she did not think she could prevent the Official Solicitor from communicating the proceedings, and since she expressly considered the mother had capacity to understand the application, she went ahead without any representation of the mother, and then ordered that the mother was not to be informed of her decision either.
For my part, I am appalled by that secret justice. But in case you are not, in case you think that this exercise of the court’s inherent jurisdiction might be justified in extreme circumstances, let me take you further to argue that it was both unnecessary and without precedent.
Unnecessary – there are two limbs to my argument that such a draconian Order was unnecessary. They draw on the ‘doctrine of necessity’, itself part of the common law, albeit generally deployed as a defence by the citizen rather than the State. This suggests that a course of action is unnecessary where there are reasonable alternatives. Less authoritatively, it also suggests a course of action is unnecessary where the authority has itself manufactured the circumstances giving rise to the need.
As to reasonable alternatives, I can’t escape the conclusion that the involvement of the mother in the process was a reasonable alternative. After all, if it still proved necessary to make the Order removing the child, there was the power – granted anyway – to use the minimum necessary force. The local authority plainly feared the mother’s knowledge would make an already difficult situation worse, but that feels to me very short term. I think many of us would be very afraid of the idea that the State can make draconian Orders such as this in secret, secrecy being justified by the fact that we would react badly.
As to manufactured necessity, paragraph 7 which sets out the risk was striking:
All those who have had dealings with her think it highly likely that the mother would inadvertently harm the baby whilst attempts are made to remove it from her.
And the notion that the harm would be inadvertent and arise because of the removal rather than independently of the removal recurs at paragraph 21, where she sets out that the evidence does
give rise to an imminent, serious and present danger to the child when it is born, in particular of an inadvertent injury to the child if the child is sought to be wrested from her.
This feels like a secret order to protect from the harm that will arise because of the secret order. That I do not like.
Without precedent – I also described Parker J’s decision as without precedent. Since we are talking about the application of common law in the absence of legislation, the question of precedent may be a touchy one. Since this case was published in the aftermath of the furore about the ‘forced caesarian’ case, and the resulting push for greater transparency, it might be suggested that there are precedents, but they are unknown.
Strictly, the case cites a precedent, the case of Bury Metropolitan Borough Council v D  EWHC 446 (Fam) (04 March 2009), a case from Munby – who has led the development of the inherent jurisdiction, and is now President of the Family Division and of the Court of Protection. My real concern is that the facts of the Munby case were so much more extreme that the use of the facts in this case represented a significant extension of the inherent jurisdiction to cover situations that would never before have been covered. The mother in Munby’s case was at the time of the birth serving a prison sentence following an assault on her child when
despite the fact that the contact was being supervised by two workers, the mother used a cloth to blindfold and gag [her child], pinned her to the floor and threatened her with a knife. (paragraph 17)
The mother had also attempted to take her own life, and expressed a
“belief that there will be reunification after death” – that is, reunification with her children – and that “the solution to her problems [is] reunification in death.” (paragraph 16)
The application of that solitary precedent to Parker J’s case, where the harm feared was both inadvertent harm and harm likely to arise as a result of the removal itself, seems to me to be quite a significant incursion of the inherent jurisdiction.
2. Re PB – the vulnerable articulate adult
I mentioned the case of the unborn child because I recollected as I read the recently published case of PB that Parker J has form in highly interventionist extensions of the inherent jurisdiction to overrule personal autonomy.
Strictly speaking, Re PB does not extend the inherent jurisdiction at all, because Parker J did not find it necessary to use the inherent jurisdiction, because she found that PB lacked capacity (a finding opposed by the Official Solicitor on behalf of both her and her husband). For this reason Parker J’s findings on her powers under the inherent jurisdiction are obiter – unnecessary to the decision – and so do not reflect new law:
if I did not find that PB lacks capacity I would have made an order in the same terms pursuant to the inherent jurisdiction. This is not strictly necessary, but I understand that the Official Solicitor will consider whether to appeal the decision following receipt of the judgment. (paragraph 109)
But I am jumping ahead. What was PB about? A couple who married “many decades ago” (paragraph 48), the wife PB significantly older than her husband, and both of them with some mental capacity issues. Their life together had included periods of homelessness, some squalor and self-neglect, and there “have been times when PB has complained of violence”. The local authority considered it was in her best interests to live in residential care apart from him; they considered she was under his influence and this was impairing her autonomy. Both husband and wife expressed to the court the value they placed on their marriage, and the court accepted
that whatever their respective problems this couple has a long standing and committed relationship and that they love one another dearly. (paragraph 48)
So, should the court separate them, should the court do so by depriving her of her liberty, and could the court do so if she had capacity? These were among the questions the judgment considered, and answered in the affirmative.
(b) Deciding the case on the basis of mental capacity
in every case where these three findings come together my heart sinks: – A clearly articulated express wish; – A capacity decision that is based on weighing the alternatives; – A best interests decision that conflicts with the express wish.
This is another such case. Another case in which an articulate wish is overridden on the basis of capacity. But Parker J goes further than before in saying that she could and would have made the same decision under the inherent jurisdiction if PB had mental capacity.
(c) Abuse by the State
The title of this post was inspired by an extract from a 2007 judgment from Munby, Local Authority X v MM & Anor (No. 1)  EWHC 2003 (Fam) (21 August 2007). It is, frankly, the elephant that has been stampeding about the room ever since I read Parker J’s PB case. Munby observed,
The [inherent] jurisdiction is to be invoked if, but only if, there is a demonstrated need to protect a vulnerable adult. And the court must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. (my emphasis, paragraph 118)
That, it seems to me, is the error into which Parker J has fallen. She is protecting PB from a potentially abusive and overbearing husband, but doing so in a way which is itself abusive of her dignity, her happiness and her human rights. It is extraordinary that the case was not referred to, given the striking similarities between the two cases.
(d) Overriding the express wish of a capacitous adult
Two years ago, I wrote extensively about the case of DL v A Local Authority & Ors  EWCA Civ 253 (28 March 2012). It is, I believe, the leading case on what is termed situational capacity. Situational capacity refers to the idea that a person who has mental capacity may nonetheless lack capacity for other reasons, such as overbearing of their will by another person. The case of DL found that such a person could be protected under the inherent jurisdiction.
I was ambivalent about this. Why, I wondered, should it be possible to override the wishes of someone with capacity, even if it their decisions were unwise? The same question has been asked about Parker J’s decision in this case.
But I had, for a time, reconciled myself to the principle in DL. I had done so because I recognised that it is right and proper that the State protects a vulnerable person from an overbearing of their will by another. And it seemed to me that there was this important but unspoken protection within the inherent jurisdiction:
Someone who doesn’t want to be safeguarded can object simply by placing their objections before the court.
And although I don’t think this has been said anywhere, I think there is an important unspoken subtext about what would happen. I do not think the court would make an Order under the inherent jurisdiction in someone’s best interests in the face of their reasoned opposition to such an Order. I think the unspoken assumption is, “the fact that you are not coming to the court to object to the proposed Order lends credence to the belief that you lack situational capacity to do so – are under duress or whatever – and therefore legitimacy to our safeguarding action”.
Which also helps to reassure me – a little, since I can see flaws in this – that the court is right to say this is no wholesale attack on the personal autonomy of the whole adult population.
Parker J has just blown that important protection out of the water. She has said, in effect, “I do not care that you have attended court to give an articulate reason why you do not want me to protect you, I still can, and will, protect you against your wishes whether or not you have capacity”. Because the fact of the matter is, PB did attend court to give an articulate account of why she did not want to be protected:
PB wrote to me before the hearing. In particular she wrote that “I should like to point out that it is the right of every individual to choose for himself or herself whom to live with and where to live and not to live under the shadow of regimentation and have to live in an institution”.
[PB and her husband] each asked to speak to me in the courtroom with all representatives present…
PB is likeable, highly intelligent, sophisticated and articulate, well-read and knowledgeable. She writes poetry. With regard to marriage she told me “Let no man put asunder” and “once a couple are married – meant to be together”…
It is obvious to me from all that I have read and heard as well as from the meeting that PB’s intellectual understanding is at a high level. She stated “I understand that this Act only came in in 2005. I wonder whether it’s working out as it should be”.
She told me, when asked what she wanted to happen, “I’d like to be free to wander the universe without being told to sit down and be quiet”, “I’d like to get my poetry published”, “I’d like [my husband] to be always at my side” (paragraphs 41-46)
Those are the recorded words of a woman who has been held to lack capacity, and has been told that whether or not she lacks capacity, the State will deprive her of her liberty so that she lives apart from her husband.
(e) The value of a marriage
I have alluded to the long marriage of PB and her husband. Given that, I would have expected that Article 8 rights would have played a somewhat more prominent role in Parker J’s decision. Consider, for example, this judicial comment:
I find that Mr and Mrs H take a traditional view of marriage and their vows, and have never regarded it as a provisional and reviewable arrangement which could and might be brought to an end by divorce or voluntary separation.
More than 30 years ago, Mrs H threw in her lot with her husband, to live together and care for each other. I accept, and give considerable weight to, the fact that a marriage such as theirs is “an engagement between a man and a woman to live together, and love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other’s society, comfort and assistance. A London Local Authority v JH & Anor  EWHC 2420 (COP) (25 August 2011)
(f) What did the Bournewood litigation decide anyway?
The Deprivation of Liberty Safeguards (of which Parker J says, “it has never so far as I am aware been suggested that the DoLs provisions are in breach of Article 5” (paragraph 118)!) were a response to the Bournewood litigation, and in particular to the judgment of the European Court of Human Rights in H.L. v. THE UNITED KINGDOM – 45508/99  ECHR 471 (5 October 2004).
A key issue in that litigation was whether the operation of the common law was sufficiently precise to amount to “a procedure prescribed by law” for the purposes of Article 5. Counsel for PB therefore rightly argued “that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and “lawful pursuant to Article 5 of the Convention”.” (paragraph 115)
What the European Court of Human Rights actually said about the common law, and its use to authorise deprivation of liberty is this:
[the UK government] argued that the Court had accepted that it was impossible, especially in a common-law system, for there to be absolute certainty in the formulation and application of certain rules of law. It had also been accepted that unwritten law, so long as it was sufficiently precise, could satisfy the requirements of Article 5 § 1. Indeed, the Government recalled that the common-law had the benefit of flexibility and evolution…
Whether or not [the development of the common law] allows the conclusion that the applicant could, with appropriate advice, have reasonably foreseen his detention…, the Court considers that the further element of lawfulness, the aim of avoiding arbitrariness, has not been satisfied.
In plainer English, the Court felt that the common law and especially where the common law was in a state of flux and development, was too arbitrary, too unpredictable and uncertain, to meet human rights standards of lawfulness. What does Parker J think?
In my view the inherent jurisdiction does extend to orders for residence at a particular place. If that constitutes a deprivation of liberty then in my view the court could authorise it pursuant to the inherent jurisdiction. (paragraph 121)
Suesspiciousminds (‘Capacity to Live with your Husband‘) sums it up like this:
This is a big deal, because if this became law, it would mean that Local Authorities could ask Courts to make decision about ‘vulnerable’ adults who had capacity to make their own decisions. And as we keep hearing ‘the inherent jurisdiction theoretically has no limits”. I believe that the Official Solicitor intended to appeal on this point of law, and I wish them all the luck in the world – this would be a major development in the law and a major erosion of the principle that people have autonomy to make bad decisions as long as they have capacity. It would be a bad day for personal liberties in this country if the inherent jurisdiction were to be extended in this way.
I agree. Two extensions of the inherent jurisdiction. Two draconian Orders. Two approaches to the subject of those Orders. The first is completely denied a voice. The second is given a voice, listened to, and sidelined. The inherent jurisdiction – to which I suggested in opening I was not hostile – is being brought into disrepute by these judgments.