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Family Law

The leading authority on all aspects of family law

09 MAR 2007

LOCAL AUTHORITY/HUMAN RIGHTS: Re S (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam)

(Family Division; Munby J; 9 March 2007)

There was no doubt that the court had jurisdiction to grant whatever relief in declaratory form was necessary to safeguard and promote the welfare and interests of a vulnerable adult, just as there was no doubt that the court had a wide and largely unfettered jurisdiction to grant appropriate injunctive relief in such a case. A judge exercising the inherent jurisdiction of the court, whether with respect to children or to incapacitated or vulnerable adults, had power to direct that the individual in question be placed at and remain in a specified institution and to authorise the use of reasonable force, if necessary, to detain that person and ensure that he or she remained at the institution. There were however certain minimum requirements if the detention were to comply with Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The detention must be authorised by the court on an application made by the local authority before the detention commenced. Subject to the exigencies of urgency or emergency, the evidence must establish unsoundness of mind of a kind or degree warranting compulsory confinement: in other words there must be evidence establishing at least a prima facie case that the individual lacked capacity and that confinement of the nature proposed was appropriate. Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persisted unsoundness of mind of a kind or degree warranting compulsory confinement. Comments in Re C (Detention: Medical Treatment) [1997] 2 FLR 180 on the use of force in the case of children applied when considering whether to make similar or analogous orders under the inherent jurisdiction with respect to incapacitated or vulnerable adults. There was no reason why, in principle, the court could not in an appropriate case appoint a receiver of an incapacitated or vulnerable adult's property in the exercise of the inherent jurisdiction.

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