City of Sunderland v PS and CA [FD]

JurisdictionEngland & Wales
JudgeMR JUSTICE MUNBY,Mr Justice Munby
Judgment Date09 March 2007
Neutral Citation[2007] EWHC 623 (Fam)
Docket NumberCase No: 7SR90001
CourtFamily Division
Date09 March 2007

In the Matter of PS (An Adult)

Between
The City of Sunderland
Claimant
and
(1) PS (by Her Litigation Friend the Official Solicitor)
(2) CA
Defendants

[2007] EWHC 623 (Fam)

Before

Mr Justice Munby

Case No: 7SR90001

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

SUNDERLAND DISTRICT REGISTRY

The Law Courts

Quayside

Newcastle Upon Tyne NE1 3LA

Mr James Brown (instructed by City Solicitor) for the claimant

Mr Joseph O'Brien (instructed by Irwin Mitchell) for the first defendant

Mr Kester Armstrong (instructed by Mortons) for the second defendant

Hearing date : 1 March 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR JUSTICE MUNBY

This judgment was handed down in private but the judge hereby gives leave for it to be published.

Mr Justice Munby
1

These are proceedings under the inherent jurisdiction. They relate to PS, an elderly lady who was born in 1925. The evidence currently available to the court indicates that she lacks capacity. She also suffers from physical ill-health.

The facts

2

PS was admitted to hospital on 22 January 2007. She was ready for discharge by 7 February 2007 but at that point a crisis emerged. Her daughter, CA, informed the hospital that she was intending to discharge her mother into her own care rather than into the care of the T unit, a residential care and elderly mentally infirm unit where PS had lived since 28 July 2006 and which had been identified as suitable for meeting PS's permanent needs at a meeting, convened by the local authority and attended by CA, on 7 November 2006. Concerns were increased by CA's request to the hospital that they not inform the local authority of what she was planning.

3

On 9 February 2007 (it was a Friday) the local authority made an urgent ex parte out-of-hours telephone application to Bodey J. He made an interim order to protect PS over the weekend, providing for PS to be placed in the T unit until a hearing before me the following Tuesday, 13 February 2007.

4

The matter came before me on 13 February 2007 and again on 1 March 2007. I made, and subsequently continued, interim declarations that PS lacks the capacity (i) to litigate, (ii) to decide where she should reside, (iii) to decide whom she has contact with, (iv) to decide on issues concerning her care and (v) to manage her financial affairs. The reason why there were no fewer than five declarations in relation to capacity is, of course, because questions of capacity are always issue specific: Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511, and Re E (An Alleged Patient); Sheffield City Council v E and S [2004] EWHC 2808 (Fam), [2005] 1 FLR 965. Someone may have capacity for one purpose but lack capacity for another purpose. In the present case the medical evidence indicates that PS lacks capacity in all five respects.

5

On 13 February 2007 I made, and on 1 March 2007 I extended, an order declaring on an interim basis, inter alia, that it was lawful, as being in her best interests, that PS resides at the T unit. I made various other orders and directions which there is no need for me to detail.

The issues

6

I give this judgment to explain two particular parts of the orders I made. Both raise important questions as to the precise ambit and reach of the inherent jurisdiction.

7

The first point arises in this way. The local authority had understandable concerns that CA might attempt to remove PS from the T unit. In the circumstances I was persuaded that it was appropriate to grant an injunction, backed by a penal notice, restraining CA from doing anything to obstruct or prevent PS from remaining at the T unit. But the local authority was understandably concerned that the injunction would not of itself enable the local authority to prevent PS's removal if CA were to take the law into her own hands and seek to remove her mother from the T unit, albeit in defiance of the injunction. Equally, the local authority was concerned that if it took steps itself to prevent PS leaving or being removed from the T unit without the protection of an appropriate order of the court it might be unlawfully 'depriving PS of her liberty' in breach of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and thereby exposing itself to a possible claim for compensation under Article 5(5): see HL v United Kingdom (2004) 40 EHRR 761 and Re DE, JE v DE and anor [2006] EWHC 3459 (Fam).

8

In these circumstances the local authority sought an order permitting it to use appropriate means to stop CA removing PS. This raised two questions: first, does the court have jurisdiction to make such an order, and, secondly, if it has, when and how should the jurisdiction be exercised?

9

The second point arises in this way. PS is in receipt of both the State retirement pension and a small private pension which are paid into her bank account. She also has some modest savings in a building society account. CA has practical control of these funds – she is, for example, empowered to sign cheques on her mother's behalf. The local authority and the Official Solicitor, who acts as PS's litigation friend, are concerned that these funds may be at risk of dissipation and that they are in any event not being appropriately applied in meeting PS's requirements. They are anxious that they should therefore be brought under proper control. But whereas there would be a mechanism under regulation 33 of the Social Security (Claims and Payments) Regulations 1987, SI 1987/1968, to ensure the proper application of PS's State pension by means of a statutory appointment of some appropriate person to receive and deal with it, that would not be available to deal with PS's other income or her savings.

10

The local authority sought the appointment of a receiver. This raised two questions: first, does the court have jurisdiction to make such an order, and, secondly, if it has, should the jurisdiction be exercised when it would be open to the local authority to make an application to the Court of Protection for the appointment of a receiver under Part VII of the Mental Health Act 1983 (still in force though prospectively repealed by the Mental Capacity Act 2005)?

The inherent jurisdiction

11

Before addressing these two particular points it may be helpful to make a few observations about the inherent jurisdiction of the court with respect to incapacitated or vulnerable adults.

12

I do not take up time re-tracing the history and development of the inherent declaratory jurisdiction with respect to adults since its rediscovery by the House of Lords in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1. It suffices to refer to the account in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at paras [38]-[43]. I merely repeat what I said in that case at para [37]:

“It is now clear … that the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established parens patriae or wardship jurisdictions in relation to children. The court exercises a 'protective jurisdiction' in relation to vulnerable adults just as it does in relation to wards of court.”

I added at para [45]:

“the court can regulate everything that conduces to the incompetent adult's welfare and happiness.”

13

Consistently with this view of the jurisdiction (and as demonstrated by Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, M v B, A and S (by the Official Solicitor) [2005] EWHC 1681 (Fam), [2006] 1 FLR 117, Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, and St Helens Borough Council v PE [2006] EWHC 3460 (Fam)) there is no doubt that the court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult's welfare and interests, just as there is also no doubt that the court has a wide and largely unfettered jurisdiction to grant appropriate injunctive relief. More generally, as I went on to observe in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at paras [96]-[97]:

“It is elementary that the court exercises its powers by reference to the incompetent adult's best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case.”

14

There is no doubt that since its rediscovery by the House of Lords the inherent jurisdiction has evolved, that it continues to evolve and that it must indeed continue to evolve if the court is properly to comply with its obligations under, for example, Articles 5 and 8 of the Convention: see Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, at para [52]. As Dame Elizabeth Butler-Sloss P said in Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC 2746 (Fam), [2004] 1 FLR 541, at para [96], in an important passage to which Mr O'Brien appropriately drew attention:

“It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue, as Lord Donaldson of Lymington MR said in In re F (Mental Patient: Sterilisation), to use the common law as the great safety net to fill gaps where it is clearly necessary to do so.”

Singer J made precisely the same point when he said in Re SK (Proposed Plaintiff) (an Adult by way of her Litigation Friend) [2004] EWHC 3202 (Fam), [2005] 2 FLR 230, at para [8],...

To continue reading

Request your trial
43 cases
  • Manchester City Council v (1) G (2) E (by The Official Solicitor) (3) F
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 August 2011
    ...of the person's rights and freedom of action. 29 The judge also relied on dicta of Munby J in Re PS (Incapacitated Vulnerable Adult) [2007] EWHC 623 (Fam) [2007] 2 FLR 1083 ( PS) to the effect that the second Winterwerp condition would be satisfied if there was “evidence establishing at le......
  • Petitions By Cumbria County Council, Stockport Metropolitan Council And Blackpool Borough Council For The Exercise Of The Nobile Officium In Relation To The Children X, J, L & Y
    • United Kingdom
    • Court of Session
    • 19 October 2016
    ...parens patriae jurisdiction of the English High Court. Following his earlier decision in Re PS (Incapacitated or Vulnerable Adult), [2007] EWHC 623 (Fam); [2007] 2 FLR 1083, he held that a judge might exercise the inherent jurisdiction of the court to direct that a child should be placed at......
  • A Health and Social Care Trust and MR O and MR R
    • United Kingdom
    • Family Division (Northern Ireland)
    • 9 November 2020
    ...liberty, provided the exercise of the jurisdiction is compatible with Article 5 of ECHR: Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, (Munby J), An NHS Trust v Dr A [2013] EWHC 2422 (Fam), [2014] Fam 161, (Baker J), Guys and St Thomas' NHS Foundation T......
  • Re X (A Child); Re Y (A Child)
    • United Kingdom
    • Family Division
    • 3 October 2016
    ...parenspatriae jurisdiction of the English High Court. 32 I start with what I said in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, para 16: "It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the in......
  • Request a trial to view additional results
1 books & journal articles
  • Not just in the Mental Capacity Act: using the law to protect vulnerable adults
    • United Kingdom
    • The Journal of Adult Protection No. 11-2, June 2009
    • 22 June 2009
    ...adults. (See, for example: G (An Adult) (Mental Capacity: Court’s Jurisdiction) [2004] EWHC 2222; Sunderland CC v PS and CA [2007] EWHC (Fam) 623).That task, in fact, began before the MCA came into effect. In a case in 2005, Mr Justice Munby said:‘The inherent jurisdiction can be exercised ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT