High Court judge rejects application by council under inherent jurisdiction to prevent husband and wife living together

September 27, 2019

A High Court judge has given her reasoning why she would have rejected a local authority’s application for an injunction under the Court's inherent jurisdiction preventing a husband living in a property with his wife, had it not been withdrawn.

In London Borough of Croydon v KR & Anor [2019] EWHC 2498 (Fam) the council had applied to withdraw its application after the first day of hearing when evidence had been given by two social workers. Counsel for Croydon accepted that in light of the oral evidence his case could not proceed.

The proceedings concerned KR, a 59-year-old man who is seriously disabled having suffered a life changing brain injury in 2004 after an attack.

It was accepted that KR has capacity to make decisions as to where he lives and who he lives with. He therefore did not fall within the scope of the Mental Capacity Act 2005.

Mrs Justice Lieven gave permission to Croydon to withdraw its application but said she would give a full judgment.

KR and his wife, ST, had been married for 40 years. ST herself has considerable vulnerabilities, the judge said. She is recorded as having been diagnosed as having bipolar affective disorder and emotionally unstable personality disorder. She reports a history of depression and has twice in recent years been detained under s.2 of the Mental Health Act 1983 (but not s.3).

There was also a very clear record of problems with alcohol and this was undoubtedly part of the background to the problems which had arisen, the judge said.

In 2015 KR moved from a care home to live with ST in a one-bedroom council flat in Croydon. From this point onwards ST became his primary carer. She is said to have been having to sleep in the living room on a sofa whilst caring for KR.

A safeguarding assessment in July 2016 stated that KR had a bloody face and black eye and reports that KR had said that he wanted to leave and go into a care home before ST kills him. He later confirmed that he did not wish to go into a care home.

“There follows a sad pattern of concerns around KR's care, and allegations of domestic abuse between ST and KR, with the allegations pointing in both directions. It is right to note at this point that KR, because he cannot mobilise, is necessarily very vulnerable to any physical assault,” Mrs Justice Lieven said.

The judge said it seemed to her that the local authority had perfectly valid safeguarding concerns about KR's care, and that the couple have had “a troubled and at times highly antagonistic relationship”.

In late 2018 and early 2019 there were a number of developments:

In December 2018 a new care agency was appointed to provide services to KR. There were from the start some problems with ST allowing access.
In February 2019 one of the social workers discussed a potential inherent jurisdiction application with her manager. At this stage the case notes said "there is no evidence that [ST] is not meeting [KR's] basic needs and separation would cause distress to both [ST] and [KR]".
On 9 March there was a report from a member of the public that KR and ST had been seen in the local neighbourhood with KR not appropriately dressed (i.e. for the cold weather) and that ST was intoxicated.
On 15 March KR was seen at A&E with bruising on his face and shoulders. ST said that he had climbed out of the cot and fallen on the floor when she was out. KR said he could not remember the events of the day.
On 18 March KR was admitted to hospital as an in-patient after having collapsed. On the same day two social workers visited the property with the police. ST was alleged to have called the police having said people had slashed their wrists in the street. ST is alleged to have kicked out at a police officer.
On 20 March 2019 Croydon made the first application to the court without notice. One of the social workers made her first witness statement which included saying that ST had been preventing carers visiting KR at home. Cohen J made an interim order providing that ST was not to remove KR from hospital.
On 27 March KR was moved from hospital to the care home. The following day was the return day on the injunction and at an inter partes hearing at which KR but not [ST] was represented. Williams J discharged the order made by Cohen J and replaced it with an order that ST not remove KR from the care home, and that her contact with him be limited, including it being supervised at all times.
The agreed chronology then states as follows: 04.04.2019 Safeguarding assessment completed. Assessment states: "the care agency report that [ST] and [KR] do allow carers access and ask them to complete tasks". They refuse access or ask carers to leave "occasionally". (The date on which this entry was made is unclear- the assessment was undertaken between 11.03.19 and 04.04.19).
On 21 May there was a hearing before Hayden J where the interim orders were continued in terms of the restrictions upon ST.

In her ruling Mrs Justice Lieven said she was “seriously concerned about the discrepancies between what some of [the] background documents showed and what was said in the evidence to the court, particularly in the first witness statement of [a social worker], which was the basis of the without notice order.

“This case commenced with an application for an injunction without notice. It continued through a series of interim injunctions where the judges necessarily had very limited time to examine background documents, even if they had been exhibited, which in key instances they were not. It is trite law that when a without notice injunction is applied for there is a duty of full and frank disclosure and there is in any event a duty on any claimant not to mislead the court. This is just as true in proceedings like this as in the Commercial Court or Queen's Bench.”

The judge said that it was relevant that the injunction sought was “not just draconian it was deeply intrusive into the private lives of two adults with capacity”.

Referring to the European and domestic caselaw on the importance of the State not interfering into individuals' marriage, she said the obligation for full and frank disclosure was “as important if not more important, than in any other form of litigation”.

Mrs Justice Lieven added: “I appreciate local authorities are hard pressed, and poorly resourced, however the importance of ensuring the Court is possession of all the relevant facts at a without notice injunction application cannot be overstated.”

The judge said she was sure that the social worker was not intending to mislead anyone [about KR’s isolation from his carers and the number of unaccounted for visits], but there was a lack of attention to the background documents, and a failure to present the full picture “which is very concerning”.

The effect of this situation was that the evidence before Cohen J painted a significantly more troubling picture of the degree to which ST was preventing carers seeing KR, and therefore suggesting that KR was at much greater risk, than the true evidence suggested, Mrs Justice Lieven said.

“It is not obvious that Cohen J would have granted the draconian order sought if he had known that ST was not stopping carers anywhere near as often as the LA had suggested, or that only a few weeks earlier the care agency had reported that ST did allow them access.”

Mrs Justice Lieven said she had to answer the following questions:

Did KR fall within the inherent jurisdiction as set out in SA (Vulnerable Adult with Capacity: Marriage) [2006] 1 FLR 867?
If yes, were the terms of the order justified under article 8(2)?
In answering (b) were there less intrusive means which would achieve the legitimate aim of protection of KR's health under article 8(2)?

She concluded that:

By the time this matter came before her, the evidence did not support a conclusion that KR fell within the scope of the inherent jurisdiction as a vulnerable adult. The evidence did not support a conclusion that KR remained under the undue influence of ST to a degree which would justify the use of the inherent jurisdiction.
The factors strongly indicated that no order should be made, even if the inherent jurisdiction were applicable. The factors which were relevant here were the level of risk to KR and whether there were less intrusive means that could have been employed by the local authority.
The first risk posited by the social worker – that KR could die if ST left him for prolonged periods – was “simply unrealistic”. ST was letting the carers in generally once a day. If she did leave him, the carers could take emergency measures, ie call the police. She did not doubt that at times ST could be very difficult, and that there was a risk that she might leave KR particularly if she was drinking. But this risk was controlled by the carers visiting regularly. One solution would be to give KR a cheap mobile phone. According to the social worker this idea was rejected because it might set a ‘precedent’and thus incur unreasonable cost. “It is difficult overstate how misjudged this approach was, given the colossal interference that the LA then saw fit to pursue through this litigation, not to mention the cost of that litigation.”
On the risk to KR from ST, she accepted that this was a couple with a history of domestic violence. “Historically KR accepts that he did hit ST, but it is obvious now that given his physical disability he is more at risk from ST. There was some evidence from bruising that ST may have assaulted KR but this is certainly not clear. In any event it would only be in the most exceptional case that the State would seek to forcibly prevent a couple from living together where there was a history of domestic violence, in circumstances where both genuinely said they wanted to live together.”
This was again a point where the LA had plainly failed to properly consider less intrusive means to mitigate the alleged risk. She had asked what steps had been made to find the couple more suitable accommodation, but Croydon told her there were no supported flats available, and they were simply on the council’s waiting list for a two bedroom flat. “It is obvious to me that before seeking a highly draconian order and making such a colossal interference in this couple's article 8 rights it was incumbent on the LA to ensure that they had suitable accommodation. That simply has not been done.”

Mrs Justice Lieven therefore found that the risks on the facts of this case did not justify the interference under article 8(2). “Further I find that the LA has not properly considered whether there are less intrusive means by which KR could be properly protected. In these circumstances I find that making the order sought would not have been necessary or proportionate.”