FD (Inherent Jurisdiction: Power of Arrest)

The High Court’s inherent jurisdiction permits protective injunctions for vulnerable adults who retain capacity and fall outside the Mental Capacity Act 2005. That jurisdiction does not, however, include power to attach a power of arrest to such an injunction. The power to make an order must be distinguished from the power to enforce it. A power of arrest requires statutory authority or an established common-law power. Although the Family Law Act 1996 formerly supplied such authority for non-molestation orders, that power was removed by the Domestic Violence, Crime and Victims Act 2004. The court therefore discharged the power of arrest attached to the injunction and concluded that the equivalent power attached in earlier Court of Protection proceedings had also been wrongly made.

FD, an 18-year-old woman, was regarded by the local authority as highly vulnerable despite having capacity to decide where she should live, her care and treatment, and contact with others. The authority sought injunctions under the High Court’s inherent jurisdiction restraining her father, AD, and GH from contacting her or attending her home. It also sought a power of arrest in respect of the injunction against GH.

Interim injunctions were granted, including a power of arrest. The judge later reconsidered the issue after examining Re G (Wardship)(Jurisdiction: Power of Arrest). The central question was whether the inherent jurisdiction enabled the court to attach a power of arrest to an injunction protecting a capacitous vulnerable adult.

1. Jurisdiction to protect vulnerable adults. The court confirmed that the High Court retains a wide and flexible inherent jurisdiction to protect vulnerable adults who have capacity and fall outside the Mental Capacity Act 2005. That jurisdiction includes power to grant interim and final injunctive relief.
2. No inherent power of arrest. The court adopted the distinction drawn in Re G (Wardship)(Jurisdiction: Power of Arrest) between the power to make orders and the power to enforce them. The ordinary powers of enforcement, including committal for contempt, did not include a power to attach arrest provisions to an injunction. The same principle applied to the inherent jurisdiction protecting vulnerable adults. The court therefore had no inherent jurisdiction to attach a power of arrest to the injunction against GH.
3. Effect of the earlier authorities. The power of arrest made in Re SA (Vulnerable Adult with Capacity: Marriage) was explained as having been supported by the statutory jurisdiction under Part IV of the Family Law Act 1996, rather than by the inherent jurisdiction itself. The Court of Appeal’s decision in DL v A Local Authority and others confirmed the survival of the inherent jurisdiction but did not determine the power-of-arrest question.
4. Statutory position. Part IV of the Family Law Act 1996 formerly permitted a power of arrest to be attached to a non-molestation order. That power was removed with effect from 1 July 2007, and breach of a non-molestation order was instead criminalised. The statutory power available when Re SA was decided was therefore no longer available.
5. Disposition. The power of arrest attached to the interim injunction was discharged forthwith. The judge also expressed the view, without having heard argument, that the power of arrest attached in the earlier Court of Protection proceedings had been wrongly made. The judgment finally highlighted the serious inequality of arms caused by FD’s lack of legal aid.