B Borough Council v S & Anor

Without notice relief is exceptional. The general starting point is that affected persons should be heard, and departure from that principle must be demonstrated and justified.

An applicant must provide a balanced, fair and particularised account; independent evidence where available; clear reasons for proceeding without notice; and a sufficiently prompt opportunity to apply to vary or discharge the order. The court must scrutinise the relief sought, its implementation and its proportionality, especially where family life is substantially affected.

Procedural shortcomings do not automatically invalidate substantive relief if the order was nevertheless necessary, proportionate and supported by the evidence. In welfare proceedings concerning an adult lacking capacity, interim injunctions and declarations may be granted under the inherent jurisdiction and CPR Part 25.

The local authority obtained without notice injunctions restraining Mrs S from preventing the transfer of her incapacitated husband, Mr S, from a nursing home to hospital and regulating her contact with him. The orders were made in September 2004 after the nursing home said that it could no longer care for him.

The proceedings later became redundant as to placement. The remaining issues were whether the local authority should have proceeded without notice, whether the evidence and procedural safeguards were adequate, whether the relief was proportionate, and whether Mrs S’s rights under Article 8 had been infringed.

1. Outcome. The claim that the local authority had acted unlawfully failed. The decision to seek relief without notice, and the manner in which the orders were explained and implemented, were reasonable and proportionate. The orders would have been made even had the first application been on notice.
2. Exceptional nature of without notice relief. The ordinary position is that persons affected by an order should have an opportunity to be heard. A departure requires justification. The applicant and the court must consider the return date, the method of service, the proposed explanation of the order, and the earliest practical opportunity to seek variation or discharge.
3. Evidence and disclosure. An applicant must give a balanced, fair and particularised account of the relevant events, identify the respondent’s likely case where appropriate, provide independent evidence where available, explain why the application is without notice, and set out the intended arrangements for service, explanation and implementation. Serious allegations require particularisation, supporting material and an explanation of their relevance. The local authority’s treatment of the abuse allegations was criticised, but the defects did not materially mislead the court or invalidate the relief.
4. Necessity and proportionality. The only realistic immediate placement was the hospital. The injunctions restraining interference with the move were necessary. Restrictions on contact were a significant interference with family life, but were proportionate because they promoted Mr S’s welfare and reduced the foreseeable risk of distress and disruption. The court assessed the relief without relying on the unparticularised abuse allegations.
5. Safeguards. Permission to apply to vary or discharge should ordinarily be immediate or forthwith, with only a short period of notice if practicable. The order should record, or refer to a document recording, the intended arrangements for service, explanation, movement and contact. These shortcomings did not require the substantive orders to be set aside.
6. Human rights and jurisdiction. The relief constituted a substantial interference with family life, but was justified under Article 8(2). A heightened standard requiring extraordinarily compelling evidence did not apply by analogy with newborn-child removal cases. The court had jurisdiction under the inherent jurisdiction to grant interim declarations and injunctions, and CPR Part 25 supplied jurisdiction for an interim declaration.
7. Cross-undertaking. In proceedings brought by a local authority in performance of a statutory function, the court has a discretion whether to require a cross-undertaking in damages. Procedural safeguards should not be replaced by such an undertaking. There should be no rigid rule, but in cases of this type a cross-undertaking would ordinarily not be required.