Senior judge issues rare non-molestation order against son of elderly parents

The President of the Family Division has taken the rare step of issuing an ex parte “non-molestation” injunction against the son of an elderly couple over his alleged aggressive behaviour towards them.

In A Local Authority v DL & Ors [2010] EWHC 2675 (Fam), Mr and Mrs L are an elderly married couple aged 85 and 90 respectively. They live in a house with their son, DL, who is in his fifties. Mrs L is disabled and receives support by way of direct payments and twice daily visits from a care provider.

The local authority accepted that neither Mr nor Mrs L were incapable of managing their affairs, and both appear capable of deciding what their relationship with their son should be and whether he should continue living under the same roof.

The case arose because of the son’s alleged behaviour towards his parents. It was claimed that he has been aggressive and on occasions been physically violent.

The council had documented incidents going back to 2005. These include “physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, including Mrs L’s carers”.

The judge said there had also been reports that the son was trying to coerce his father into transferring ownership of the house into his name, and had been applying pressure on the parents to have Mrs L moved to a care home against her wishes.

The council wanted to take steps to protect the parents from DL. It had considered and rejected (and this was met with Sir Nicholas' approval):

• Using the criminal law
• An application under the Mental Capacity Act 2005
• An application for an ASBO under the Crime and Disorder Act 1998
• An application under s.153A of the Housing Act 1996.

The local authority also acknowledged that neither of the parents lacked capacity to take proceedings on their own or each other’s behalf, and recognised that the mother in particular wanted to preserve her relationship with her son. Mrs L feared that if steps were taken to remove him, there was a risk that at worst he might commit suicide or at best she might not see him again. The council also recognised that the father would be unlikely to take steps against the mother’s wishes.

The council nevertheless considered that it owed the parents a duty to protect them from the son’s behaviour. It applied for an order restraining DL from acting unlawfully; it did not apply for an order excluding the son from the house.

It also decided to apply without notice to DL as it feared that an application on notice might provoke the violence it wanted to prevent, and because it would allow service in the “safest and most sensitive way possible”.

The local authority advanced two bases on which the judge could make the order: the inherent jurisdiction of the High Court to protect vulnerable adults; and s.222 of the Local Government Act 1972.

Sir Nicholas Wall stressed that he had heard no oral evidence and made no findings of fact. The judge said he was of the view that while the case before him involved an extension of the inherent jurisdiction and it could be possible to distinguish it from Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, the Re SA case did provide a jurisdictional basis for the exercise of the inherent jurisdiction on the facts of the case.

The judge also said that s.222 of the 1972 Act “does arguably…..found jurisdiction for the type of injunctive relief claimed”. But Sir Nicholas added: “At the same time, it does not seem to me that s.222 adds greatly to the arguments advanced under the inherent jurisdiction.” He said both “stand or fall together”.

Sir Nicholas made an order including not only a Harbin v Masterman investigation by the Official Solicitor but also service on the defendants, liberty to apply and determination by a High Court judge of any subsequent on notice hearing.

“Whether, on detailed investigation the facts prove to be as the application plainly believes them; whether the jurisdiction on which I have found to exist (a) does indeed exist; (b) falls to be exercised; and (c)  if so on what terms – these are all matters which are open for debate on an inter partes hearing before a High Court judge on circuit.”