LBX v K & Ors

The inherent jurisdiction may protect a vulnerable adult who has capacity where protection is necessary to preserve the practical exercise of that capacity. The existence of civil remedies does not automatically prevent its use. Where protective orders interfere with Article 8 rights, the court must balance the rights of the vulnerable adult and the person affected by the orders. The orders must be necessary and proportionate to the identified risk. A real risk that emotional pressure will compromise a borderline capacity may justify structured restrictions designed to maintain emotional safety and preserve capacity.

L had been found to have capacity to decide where he should live, the care he should receive and contact with his family. The court nevertheless considered whether to invoke the inherent jurisdiction because he was a vulnerable adult whose borderline capacity was liable to be compromised by overwhelming emotional pressures, particularly in his relationship with his father, K.

The local authority and the Official Solicitor sought protective orders regulating K’s contact with L, contact with L’s support providers, and taking L to K’s home. K relied on existing civil remedies and argued that the proposed interference with Article 8 rights would not be in accordance with the law and was unnecessary and disproportionate.

1. Inherent jurisdiction. The court invoked the inherent jurisdiction to protect L notwithstanding his capacity to make the relevant decisions. The jurisdiction was recognised in DL v A Local Authority [2012] EWCA Civ 1022, which endorsed the approach taken in Re SA.
2. Need for protection. L had only just been found to have capacity and remained vulnerable to overwhelming emotional issues. The psychiatric evidence and findings made earlier in the proceedings established a real risk that exposure to those pressures would cause him to lose, or be very likely to lose, capacity. A proportionate structure was therefore required to enable him to retain capacity in a relatively calm and emotionally safe environment.
3. Alternative remedies. The availability of civil remedies, including the statutory framework under the Protection from Harassment Act, did not make the inherent jurisdiction unnecessary. Those remedies did not provide the structure required to maintain L’s capacity in the circumstances of this case.
4. Article 8 and proportionality. Article 8 rights were engaged in relation to both L and K. The court was required to balance the interference with their respective rights. On the evidence, the protection sought was necessary and proportionate because without it there was a real risk that L’s capacity would be compromised.
5. Orders. Orders were made restricting K’s contact with L, preventing contact with L’s support providers, and preventing K from taking L to his home without prior discussion with L’s social worker or manager and an appropriate capacity assessment. Provision was also made for communication between K and the local authority.