Inherent Jurisdiction Gerry Gillen, Legal Services Leeds City Council October 2012

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1 Inherent Jurisdiction Gerry Gillen, Legal Services Leeds City Council October 2012

2 Application to High Court for injunction opposed by Respondent In the Court of Appeal the opposition was not that the injunction was not necessary but that the court did not have the power/authority to make the order (jurisdiction) Accepted that the Inherent Jurisdiction existed but was it extinguished by the MCA

3 Does the local authority owe a duty to the parents Neither parent lacked capacity Neither wanted to take action against son Moot point If yes:

4 Options open to Local Authority CoP application (in relation to parents) Mental Health Act 1983 (in relation to son) ASBO (Crime and Disorder Act 1998) s153a of the Housing Act 1998 s 222 Local Government Act 1972

5 INTRODUCTION What is Inherent Jurisdiction What is jurisdiction The ability of the court to deal with a matter Common Law or Statute: neither To fill gaps left between the common law and statute Henry 11 and travelling justices

6 Jurisdiction: Decision for the Court does the jurisdiction exist Falls to be exercised and if so, on what terms

7 Human Rights Act implications Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. A balancing act!

8 Harbin v Masterman [1896] investigation Local authority s assessments suspect i.e. they were partisan Need for an independent assessment

9 Ex Parte application LA sought the following: (1) Under the Court s inherent jurisdiction in relation to vulnerable adults; (2) Further or alternatively, under s 222 Local Government Act 1972 (LGA 1972) to restrain a breach of the criminal law; (3) Further or alternatively, under s 222 LGA 1972 to prevent an interference with the discharge of the local authority s statutory functions, including its functions under relevant community care legislation and under the Human Rights Act 1998.

10 An order to require son to act lawfully No prejudice to him i.e. not being asked to leave the house etc.

11 What if the parents were consenting to the behaviour? Sedley LJ put it in the case of Re. F (Adult: Court s Jurisdiction) [2001] 1 Fam 38, the purpose of Article 8: is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related and well-intentioned, to create or perpetuate situations which jeopardise their welfare.

12 The court made the following order preventing son 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;

13 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.

14 Powers of Entry Gerry Gillen Legal Services Leeds City Council October 2012

15 Persuasion: never to be underestimated The assistance of the Police A key skill, to talk your way in, presence, authority Recourse to the law: a last resort Immediate risk to life and limb Depending on the facts, the assistance of the Police

16 S17 PACE Saving life and limb reasonable cause to believe Preventing damage Mental health Act s135 s47 National Assistance Act 1948

17 135 Warrant to search for and remove patients. (1)If it appears to a justice of the peace, on information on oath laid by an approved mental health professional, that there is reasonable cause to suspect that a person believed to be suffering from mental disorder (a)has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the jurisdiction of the justice, or (b)being unable to care for himself, is living alone in any such place,

18 s47 National Assistance Act 1948 (1)The following provisions of this section shall have effect for the purposes of securing the necessary care and attention for persons who (a)are suffering from grave chronic disease or, being aged, infirm or physically incapacitated, are living in insanitary conditions, and (b)are unable to devote to themselves, and are not receiving from other persons, proper care and attention. Non-HRA compliant

19 Self neglect cases Housing legislation if council tenant Public health legislation if insanitary conditions Application to High Court Inherent Jurisdiction Labour intensive, need for strong evidence, costly, long winded

20 Article 8 arguments Capacitous decision to live in squalor

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