Emergencies and equivocality under the inherent jurisdiction: A local authority v BF [2018] ewca civ 2962 and southendon-sea borough council v meyers [2019] ewhc 399 (fam)

Abstract

In A Local Authority v BF [2018] EWCA Civ 2962, the Court of Appeal refused to grant permission to appeal against an interim judgment that deprived a capacitous man, Mr Meyers, of his liberty. The deprivation of liberty was held to be justified on the basis that there was evidence suggesting that he was of unsound mind under Article 5(1)(e) of the European Convention on Human Rights and, in any event, it was an emergency which temporarily obviated the need to establish that he was of unsound mind. In this commentary, I argue that the decision was flawed in two respects. First, the need to establish 'unsound mind' could not be dispensed with because it was not an emergency and, secondly, the Court's interpretation of 'unsound mind' was overly broad and cannot be reconciled with the jurisprudence of the European Court of Human Rights. Subsequently, in Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam), which was the substantive hearing of Mr Meyers' case, Hayden J made an order preventing Mr Meyers from living with his son, with the decision being framed as a restriction on movement rather than a deprivation of liberty. I contend that the restrictions placed on Mr Meyers may amount to a deprivation of liberty. On a broader level, I argue that the use of the inherent jurisdiction to deprive vulnerable adults of their liberty is incompatible with Article 5, and that these cases demonstrate the potential for draconian decisions to be made when using a jurisdiction with shifting parameters to protect adults who are deemed to be 'vulnerable', a concept that is equivocal in nature.