RK, Re (Capacity; Contact; Inherent Jurisdiction) [2023] EWCOP 37

Application by R's family for declaration and orders concerning her capacity and use of inherent jurisdiction. 

R is a 30 year old with Down's Syndrome who lives in supported accommodation. She had fallen out with her family, who had an LPA in place, following a relationship with a male resident and the family subsequently made allegations of poor care at the home. They also made claims that the staff had persuaded R to cease contact with them. 

At [86] Mr Justice Cobb identifies the core disputed issue: R's capacity to decide on contact with the family and with others. After directing himself to the relevant cases law, he reviews the medical evidence which was divided on the issue. However he concludes the family had not rebutted the presumption R has capacity. He then considers their application to use the inherent jurisdiction to make the orders. Again he rejects that approach, after reviewing Munby J's decision in Re SA, stating at [133]: 

it is nonetheless clear from his judgment (and from DL which followed) that those for whom it would apply are those who are under constraint, subject to coercion or undue influence or otherwise (for some other reason) deprived of the capacity to make a relevant decision, or disabled from making a free choice (see above). In my judgment, this has not been R's experience in her placement.

Given these conclusions, Cobb J finds he has 'no jurisdictional peg on which to hang' a ruling on R's care going forward but he does, as requested, express some views on a proposed framework. 

Read the judgment on Bailii