RE G (COURT OF PROTECTION: INJUNCTION)

The Court of Protection may grant an injunction to give effect to, or prevent frustration of, a decision made for a person lacking capacity under section 16(2) of the Mental Capacity Act 2005. Section 16(5) applies whether the Court itself made the decision or appointed a deputy.

The injunction is an exercise of the Court’s High Court power under section 47(1). It must therefore be just and convenient. That requires an interest meriting protection and a legal or equitable principle justifying the restraint. An existing best-interests order will ordinarily supply both where conduct threatens to undermine it. The Court must nevertheless consider all circumstances, including the rights of those restrained.

G was an adult lacking capacity whose long-term residence and care were governed by proceedings in the Court of Protection. Hayden J decided that it was in her best interests to move from a children’s hospital to a residential placement, A House.

Following evidence that G’s father was seeking to prevent that placement, and that her mother and grandmother supported or might assist that campaign, Hayden J granted a 12-month injunction against all three family members: [2022] EWCOP 25. The order regulated their conduct towards staff, their involvement in G’s care, contact arrangements and visits.

All three appealed. The central issue was the legal test for an injunction in the Court of Protection. The father also challenged reliance on anonymous hearsay evidence. The mother challenged the evidential basis for restraining her. The grandmother contended that she had not received fair notice of the final relief sought against her.

1. The appeals of the father and mother were dismissed; the grandmother’s appeal was allowed. The final injunction against the grandmother was remitted for a rehearing before a different Tier 3 judge of the Court of Protection.

2. Section 16(5) of the Mental Capacity Act 2005 applies both where the Court makes a decision for P under section 16(2)(a) and where it appoints a deputy under section 16(2)(b). Its power to make further orders capable of giving effect to a section 16(2)(a) decision includes orders in the nature of injunctions. Section 17(1)(c), which permits a prohibition on contact with P, confirms that conclusion.

3. That did not create a separate, free-standing injunctive jurisdiction. An injunction granted for a section 16(5) purpose is an exercise of the Court’s High Court power under section 47(1). It must therefore satisfy section 37(1) of the Senior Courts Act 1981: it must be just and convenient. Following Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24, the Court held that this requires an interest meriting protection and a legal or equitable principle which justifies the order.

4. Those requirements were met. G had an interest in the implementation of the existing best-interests decision that she move to A House. The established principle that a court may make ancillary orders to prevent frustration of its own orders justified relief. An injunction designed to protect such an order will also usually be in P’s best interests, but its discretionary nature requires consideration of all relevant circumstances, including the restrained persons’ Convention rights.

5. The judge was entitled to give weight to the anonymous hearsay evidence. Under the Civil Evidence Act 1995, the issue was weight rather than admissibility. The judge assessed the evidence against the wider evidential picture, including direct evidence, the father’s admissions, the consistency of the accounts, and the reasons why nurses remained anonymous. He made no findings about alleged tampering and did not unfairly rely on it.

6. The evidence established a real forward-looking risk that the mother would assist the father to undermine the placement. An injunction is protective, not a penalty for past wrongdoing. It may properly extend to an associate likely to help the primary respondent evade its purpose.

7. The grandmother had not been given proper notice of the final penal injunction or of the grounds and relief sought against her. Basic fairness required an adjournment, with an interim without-notice injunction and return date if protection were needed. The merits of a final injunction against her were left for rehearing.

• Court of Appeal (Civil Division): dismissed the father’s and mother’s appeals, allowed the grandmother’s appeal, and remitted the proposed final injunction against her for rehearing.

• Court of Protection: Hayden J granted a 12-month injunction against G’s father, mother and grandmother in support of the decision that G should move to A House: [2022] EWCOP 25.