Regular readers will probably know that I feel uncomfortable about phrases like “the powers of the inherent jurisdiction are theoretically limitless” and that cases are developing which extend the previous usage of the inherent jurisdiction a bit further, and then those cases are relied on next time around to push it a little further still. It is mission creep, and it makes me nervous.
In this case, Baker J (who makes my Top Five Judge list, comfortably), had to decide on a mother’s application to extend an existing injunction that prevented a father contacting his daughter or coming near her, past the child’s 18th birthday. In effect, for the rest of her life.
Re SO (a Minor) 2015
http://www.familylawweek.co.uk/site.aspx?i=ed145192
I am somewhat puzzled that the child was not represented in these proceedings, as the orders were all about her, and she was nearly 18 and thus presumably in a position to have a view even if it was felt unsuitable for her to attend Court.
The rationale behind wanting to protect the child was decent. The father had been convicted of offences of arranging to have the mother killed, and continued to deny those offences. One can see why the Court would want, while SO was a child to protect her from her father. He is palpably not a nice man. I can absolutely see why the mother would be genuinely very fearful of him and genuinely want to protect herself and her child from him.
The issue for me, whilst not really having any sympathy for the father in this case, is whether the State, in the form of the Court should be making orders protecting SO from things as an adult on someone else’s request rather than SO making an application to the Court for protection.
The injunction sought (and made) was in these terms, and I think that these are orders that could easily have been made by way of SO making an application for a non-molestation order if she decided she wanted that protection.
“It is ordered that
(1) the respondent, whether by himself or instructing, inciting or encouraging any other person be restrained until further order from
(a) using or threatening violence or attempting the same against the applicant or S;
(b) intimidating, harassing or pestering the applicant or S;
(c) coming within a 50 miles radius of, entering or attempting to enter, any property at which he believes, knows or suspects the applicant or S to be present or living or of any educational establishment or place of work at which he believes, knows or suspects the applicant or S may attend or work;
(d) communicating or making contact with the applicant or S by letter, telephone, Skype, text message, email, any means of electronic communication, or through any social networking sights including Facebook, save through the offices of Messrs Thomson, Snell and Passmore, the applicant’s solicitors;
(2) any person on whom this order served, or who is aware of its terms, is restrained until further order from making disclosure to the respondent, or to any other person on his behalf, which would in any way identify the current whereabouts of the applicant or S, from identifying to the respondent the name or identity under which the applicant and S may be known or is currently living and/or registered;
(3) the applicant and/or her solicitors are authorised to disclose this order and any other information relating to these proceedings to:
(i) the police in the United Kingdom;
(ii) the Home Office, and any agency acting on its behalf, and any relevant government authority in Scotland;
(iii) the Department of Community Services in Australia and
(iv) the Australian Federal Police, New South Wales Police Force and any other relevant police authority and state correctional services, whether publically funded or privately managed.
An obvious question arises about the Australian element, and that might be a reason why not to use the statutory power of a Non-Molestation Order – because there might be problems with enforcing that if the father was living in Australia. But hold on, it appears that everyone involved was living in Australia
Meanwhile the mother and S, in respect of whom of a series of non-molestation injunctions have been made within the wardship proceedings dating back to an order of Black J (as she then was) dated 14th June 2000, themselves moved some years ago to Australia, living at an address which, it was assumed, was unknown to the father. S has flourished in her mother’s care in Australia and has now embarked upon tertiary education, following the conclusion of the schedule 1 proceedings in the course of which I made a substantial order for her financial provision. Nonetheless, both the mother and S have continued to live under the shadow of the threats by the father to the safety of the mother and, indirectly, S.
[I’m somewhat mystified as to why a High Court injunction in England is the best route to protect an 18 year old girl living in Australia. It is legally permissable because:-
(4) When, as here, the court has jurisdiction at the start of wardship proceedings on the grounds that the child is habitually resident in England and Wales, that jurisdiction continues until the conclusion of the proceedings, notwithstanding the fact that the ward has become habitually resident elsewhere. That is sufficient to provide jurisdiction in this case for the making of the orders sought by the applicant. In addition, the court may have jurisdiction on the grounds that the ward is a British national. In either case, the question is, as Baroness Hale observed in Re A whether it is appropriate to exercise the jurisdiction in the particular circumstances of the case. ]
You will note from the terms of the order, which the High Court made “until further order” (i.e possibly for the rest of the lives of those involved) that it would prevent the father replying to any attempt by his daughter to contact him. I’m not sure if she would ever want to, but it seems odd that if she initiated contact he would be unable to respond. Actually, SO would be in breach of this order if she contacted her father and told him her address or new name…
As a matter of law, I think that Baker J was right to rule that he had the power to make such an injunction on an adult (I just think that the law that has laid those foundations is wrong, and built on a gradual move away piece by piece from the spirit and intent of the inherent jurisdiction. All of the individual decisions have been the Court doing what they thought was best for a person, but autonomy means that where a person has capacity they and they alone have the right to decide what is best for them. )
Let’s look at, for example, the case that set the Inherent Jurisdiction for adults hare running in the first place.
Re SA 2006 http://www.familylawweek.co.uk/site.aspx?i=ed1678 when the issue of Forced Marriage was just becoming apparent and there was not yet a statutory mechanism to protect people from it. The inherent jurisdiction had been used to prevent a minor from being forcibly married, and in Re SA Munby J (as he then was) had to decide whether that protection could continue into adulthood.
“It would in my opinion be a sad failure were the law to determine that [the court] has no jurisdiction to investigate and, if necessary, to make declarations as to T’s best interests to ensure that the protection that she has received belatedly in her minority is not summarily withdrawn simply because she has attained the age of 18.””
But in the same judgment, this passage appears
“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.”
There’s no evidence here that SO lacks capacity to make decisions for herself about whether she wants to see her father or be contacted by him, or whether she might want to apply for legal orders to protect herself. I am struggling to see why the Court should use its inherent jurisdiction to make an order that affects the rest of SO’s life when she has not applied for such an order.
{I can see why the desire to protect her from something that most people would just as being an unhealthy or unpleasant influence leads to the order being made, but it is not the job of the State to protect adults with capacity from unpleasant events. If SO wants to be left alone by her father and he is not likely to acquiesce to her wishes, then there’s a statutory remedy – non-molestation order. If she applies for it, the State in the form of the Court makes a decision about whether the order is justified. But here the State is deciding for someone who has capacity and is about to become 18 something that will have an impact on her life because it thinks that is what is best for her. I can also see why the mother and the Court felt that the father was so dangerous and toxic that they didn’t want to put SO through the risks of making her own application. }
28. In my judgment, it is imperative that this court makes the order within the wardship jurisdiction, or alternatively under its inherent jurisdiction to protect vulnerable adults, extending the protection provided hitherto beyond S’s 18th birthday. In the circumstances of this case, it is essential that, in order to ensure the protection is extended for S, the mother is also kept within the ambit of the injunction.
There is nothing in the case to suggest that SO herself is a vulnerable person, that there are any inherent characteristics in her that are vulnerable – the reason she is ‘vulnerable’ is because of external things not because she herself has any inherent vulnerability. She is not a vulnerable person, she’s a person who happens to be vulnerable because of external factors. It might seem a trivial distinction, but I don’t think that it is.
What prevents that line of thinking becoming that the State has the power to forcibly remove a woman from a violent partner? She has capacity to decide that she wants to be with that awful man, but she is ‘vulnerable’ because of the risks that he poses, so can the inherent jurisdiction decide that it would be best for her to be protected from that man? The powers are theoretically limitless – if she is considered vulnerable….
A twenty year old decides to have a relationship with a fifty year old who has had some criminal convictions including drug use. Her relatives disapprove and think that she’s vulnerable to getting used and ending up being broken hearted. Is she vulnerable? Can the State be asked to make injunctions to protect her?
A sixty year old man with a large fortune falls in love with a twenty five year old. The family are worried that he is being taken for a ride and that this girl is a gold-digger. Is he vulnerable?
It isn’t problematic or unreasonable in this case to say that SO is vulnerable and needs protection, but the concern is that this case becomes cited in the next case along to make inherent jurisdiction orders about adults who have capacity to decide things for themselves, and then that next case gets cited in the one after that, and so on. It feels like the classic slippery slope scenario. As a matter of law now, the inherent jurisdiction is a theoretically limitless power, but should that be the case?
At the very least, when the Court is using such a theoretically limitless power, shouldn’t there be a very detailed analysis of proportionality and necessity, considering article 8 of the Human Rights Act?
suesspiciousminds 