Re FD (Inherent Jurisdiction: Power of Arrest), HHJ Clifford Bellamy, sitting as a High Court Judge, 28 September 2016 The issue was whether a power of arrest may be attached to an injunction granted by the High Court under its inherent jurisdiction in the case of a vulnerable adult who has capacity.
The issue was whether a power of arrest may be attached to an injunction granted by the High Court under its inherent jurisdiction in the case of a vulnerable adult who has capacity.
A local authority applied to the High Court because of concerns about the risk to FD, aged 18, arising of her relationships with AD (her father) and GH (a male friend). It sought an injunction to prevent AD and GH from having contact with her and going to her home. It also sought an order attaching a power of arrest to the injunction.
Previously the local authority had applied to the Court of Protection and expert psychiatric evidence had been obtained that found that FD had a learning disability and attachment problems and was an extremely vulnerable individual, but she had capacity to make decisions. FD was declared to have capacity in the relevant areas.
Citing Re G (Wardship) (Jurisdiction: Power of Arrest) [1983] 4 FLR 538, in which the Court of Appeal held that in wardship there was no power to attach a power of arrest to an injunction, the court held that the inherent jurisdiction in relation to vulnerable adults likewise includes no such power.
In Re SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 LFR 867, in which Munby J did attach a power of arrest to an injunction granted under the inherent jurisdiction in relation to vulnerable adults, the court’s powers to attach a power of arrest had not been the focus of the analysis and at that time Part IV Family Law Act 1996 provided power to attach a power of arrest to a non-molestation injunction. That Act had since been amended.
Acknowledging that he had not heard argument on the point, the judge expressed theview that the Court of Protection does not have power to attach a power of arrest to a non-molestation injunction either.
FD’s lack of legal aid
FD, who opposed the application, was not represented because she was refused legal aid. A back-payment of benefits meant that she had capital that disentitled her on grounds of means. This led, the court held, to the odd result that a benefit, which, had it been paid weekly, would not have led to her being outside the financial threshold for entitlement to legal aid, now disentitled her to legal aid because it was paid in arrears by way of lump sum. Regulation 12 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 contains a power to waive the eligibility limit in proceedings relating to domestic violence and forced marriage. If FD was not represented at future hearings there would be no equality of arms. The court invited the Legal Aid Agency to reconsider its decision.
The full judgment is available here.
