Does the Court of Protection have the power to grant injunctive relief? Yes, said the court.
These proceedings came about when the local authority applied for an injunction against a man to prevent him from attending the P's accommodation. The Court of Protection, pursuant to s.16(5) and s.48 of the Mental Capacity Act 2005 ('the 2005 Act'), made an injunction against the man from contacting the P or visiting her accommodation. At a later hearing to consider the issue of the injunction, the court 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, the court discharged the injunction made by the CoP and made an injunctive order in the same terms but pursuant to the inherent jurisdiction of the High Court. The current hearing was to decide if the CoP did have jurisdiction to make an injunctive order.
The court concluded that it did have the power to grant injunctive relief in support of and to ensure compliance with its best interests decisions and its orders. The reasons were as follows:
i) s.47(1) of the 2005 Act is 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 1981 Act to grant injunctive relief;
iii) this conclusion is 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 is 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 2017 Rules, 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.
Read the full text of the judgment on Bailii
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