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Court of Protection has power to grant injunctive relief, judge rules

The Court of Protection has the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders, a judge has concluded.

In SF (Injunctive Relief) [2020] EWCOP 19 Mr Justice Keehan was concerned with 'SF', who is 20 years of age.

SF has a diagnosis of Autism Spectrum Disorder ('ASD') and has learning disabilities. She resides in a supported living establishment where she receives 1:1 support 24 hours per day.

In September 2019 the care and support provider became aware that SF was communicating with a number of men via social media and the internet. Further, it became apparent that some of these men were attending her placement and having sexual relations with her.

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Only one of these men had, to date, been identified, a man whom Mr Justice Keehan referred to as 'VK'.

On 28 January 2020 the local authority applied for an injunction against VK to prevent him from attending SF's accommodation.

On 5 February the local authority applied for an injunction in the same terms against 'persons unknown'.

On 6 February Williams J made a number of interim declarations and orders including an injunction against VK from contacting SF or visiting her accommodation.

The matter was listed for a directions hearing before Mr Justice Keehan to consider whether the injunction against VK should be continued and whether he should grant the application for an injunction against person unknown.

A further directions hearing was listed before Mr Justice Keehan on 14 February to consider the issue of the injunction against VK.

At a hearing on 10 February Mr Justice Keehan raised with counsel the question of whether the Court of Protection had the power to grant injunctive relief. He invited submissions from the applicant local authority and from the Official Solicitor acting on behalf of SF.

At a hearing on 14 February the judge was not persuaded that the Court of Protection had the power to make an injunctive order against a party or against a non-party.

Accordingly, he discharged the injunction made by Williams J on 6 February and made an injunctive order against VK in the same terms but pursuant to the inherent jurisdiction of the High Court.

Mr Justice Keehan heard oral submissions on the issue. The Official Solicitor requested further time to reflect and make written submissions. The judge agreed to this.

In his subsequent judgment Mr Justice Keehan said the fact that Hayden J, now the Vice-President of the Court of Protection, and Cobb J had taken the view – in MASM v. MMAM (by her litigation friend, the Official Solicitor), MM, London Borough of Hackney & University Hospital NHS Foundation Trust [2015] EWCOP 3 and Re Leslie Whiting [2013] EWHC B27, and North Yorkshire County Council v. Elliot [2019] EWFC 37 respectively – that the Court of Protection did have the power to grant injunctions to support and ensure compliance with its best interests decisions and its orders was “very persuasive”.

He added: “Having had the benefit of counsels' submissions and the time to reflect on the authorities cited to me, I am now persuaded that the Court of Protection does indeed have the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders.”

The judge said he so found for the following reasons:

i) s.47(1) of the Mental Capacity Act 2005 Act was drafted “in wide and unambiguous terms”;

ii) it must follow that the Court of Protection has the power which may be exercised by the High Court pursuant to s.37(1) of the Senior Court Act 1981 to grant injunctive relief;

iii) this conclusion was fortified by the terms of s.17(1)(c) of the 2005 Act which permits the court to prohibit contact between a named person and P;

iv) it was further fortified by the terms of ss. 16(2) & (5) of the 2005 Act. The provisions of s.16(5) are drafted in wide terms and enable the court to "make such further orders or give such directions…….as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order…….made by it under subsection (2)";

v) finally, the Court of Protection Rules 2017, r.21 & PD21A, make provision for the enforcement of orders made by the Court of Protection including committal to prison for proven breaches of court orders.

Mr Justice Keehan therefore chose to discharge the injunction he made against VK on 10 February under the inherent jurisdiction of the High Court and substituted it with an injunction in the same terms made in the Court of Protection.

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