13 February, 2020
When a local authority becomes aware of a serious risk to a vulnerable adult who has capacity but is reluctant to cooperate, a local authority has several options when considering how best to protect them. The Anti-social behaviour, Crime and Policing Act ('the 2014 Act') received royal assent on 13 March 2014 and its' suitability to be used to respond to such difficult circumstances has been demonstrated in a recent case involving a local authority.
P, a gentleman in his 70's, was subject to a local authority safeguarding investigation following a brutal assault by a relative, in which he was subjected to strangulation, punching and kicking. P was admitted to hospital but discharged himself. P was unwilling to engage with statutory services, as he feared reprisal by the relative. The incident was not an isolated one, as P had previously been subject to emotional, financial and physical abuse by the relative in his own house.
Social workers had found P, who had health needs, to be living alone in a severely impoverished and neglected state and undoubtedly afraid of the relative. Nevertheless, he firmly refused offers of assistance from social services and the Police, because he wanted to protect the relative and himself.
The relative was ultimately arrested for the assault on P and served a short sentence of imprisonment. Following his release, the Police were granted a Domestic Violence Protection Order ('the DVPO') for 28 days against the relative pursuant to s27 Crime and Security Act 2010. The DVPO prohibited the relative from using or threatening violence, intimidation, harassing or contacting P. P's health and wellbeing appeared to improve during this 28-day period, however he continued to refuse offers of respite accommodation.
A multidisciplinary team of professionals considered that a highly serious and likely risk of harm to P would persevere beyond the expiration of the DVPO. However, as P had capacity but continued to refuse any assistance or interventions, safeguarding measures were limited. P's capacity was not in doubt therefore there was no route into the Court of Protection. Similarly, P's reluctance to oppose his relative's abuse meant that neither a non-molestation order pursuant to the Family Law Act 1996, nor an injunction pursuant to the Protection from Harassment Act 1997 would be possible.
Counsel's initial legal strategy was to consider declaratory relief by way of the High Court's Inherent Jurisdiction. However, this was likely to take some time, there were doubts that P would engage with the capacity assessment, and it could lead to P being removed to a place of safety, when he had repeatedly stated that he did not wish to move out of his own home.
The Council utilised this Act having satisfied themselves that the relevant criteria could be met, namely that they could satisfy the Court on the balance of probabilities that the respondent had engaged or threatened to engage in anti-social behaviour and that an injunction would be just and convenient for the purpose of preventing the respondent from engaging in anti-social behaviour.
The local authority successfully obtained an urgent hearing before a District Judge listed on the date of the expiration of the DVPO, following a without-notice application.
An interim order was granted for five weeks which prohibited;
The order also contained a power of arrest, so an arrest warrant could be made upon reasonable suspicion (on the balance of probabilities) of breach of the order.
A further six week injunction was granted to allow for further evidence gathering and provision of support to P. Significant hearsay evidence provided anonymously meant that a final injunction order for 12 months was granted.
No breaches of the order were detected, however significant improvements in P's engagement and physical and mental wellbeing were noted and it transpired that the final injunction also benefitted the local community who had expressed their own fear of P's relative.
The use of the 2014 Act meant that an effective legal safeguard for P was obtained in a timely and cost-effective manner which enabled the Local Authority to balance the parties respective Article 8 rights alongside their own duty to protect P's Article 2 right to life.
The route taken also reduced the possibility of P being moved out of his own home to a place of safety which best reflected P's desire to remain living in his property and thus was in his best interests.
The success of the Local Authority's application pursuant to the Anti-social Behaviour, Crime and Policing Act 2014 however, rested upon the quantity and quality of the monitoring of any breaches, and close working with the Police and other agencies to evidence the risks to P.
This case should act as a reminder for Local Authorities that, provided the necessary conditions are met, the 2014 Act can be an accessible and cost-effective alternative to resorting to declaratory relief by way of the Inherent Jurisdiction when endeavouring to safeguard vulnerable persons, even in the most serious of cases.
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