By Kevin Chan
How can social workers safeguard adults who are choosing, with capacity, to keep themselves in an abusive situation, perhaps out of fear or love? A recent case suggests that legislation designed to tackle antisocial behaviour may provide an option for practitioners in these cases.
P, a man in his 70s, was the subject of a local authority safeguarding investigation following a brutal assault by a relative in which he was punched, kicked and strangled. This incident had been the latest in a long history of emotional, financial and physical abuse by the relative towards P, who was physically vulnerable.
Though P went to hospital, he discharged himself and was unwilling to engage with statutory services because did not want to place a close family member ‘in trouble’. He was also in significant fear: he genuinely believed that he and his pets would be killed and his house set on fire in retribution. The relative would visit, often to extort money, and P would fear reprisal if he didn’t allow him access.
Find out more
Community Care Inform Adults users can find out more about domestic violence protection orders by reading this guide to using preventive and protective measures in domestic abuse cases.
Following the relative’s arrest and a short prison sentence, the police obtained a domestic violence protection order (DVPO) under section 27 of the Crime and Security Act 2010. The DVPO prohibited the relative from using or threatening violence towards P, or intimidating, harassing or contacting him. Subsequently, P’s health and wellbeing appeared to improve.
Despite this improvement, P refused respite accommodation for fear of ending up in 24-hour care. Though the DVPO was only temporary – with a maximum length of 28 days – it was nevertheless useful to allow the local authority to plan further safeguarding measures.
Limited legal options
The multidisciplinary team considered that a serious and likely risk of harm to P would persist beyond the end of the DVPO; however, its safeguarding legal options were limited by P’s capacitous refusals of assistance and interventions.
Equally, P’s reluctance to legally oppose his relative’s abuse meant that a non-molestation order under the Family Law Act 1996 or use of an injunction under the Protection from Harassment Act 1997 would not be feasible.
More on the inherent jurisdiction
Inform Adults users can find out more about when and how to use the inherent jurisdiction in safeguarding cases in this guide to the measure.
Therefore, the initial legal strategy was to consider use of the High Court’s inherent jurisdiction which had recently been demonstrated, in similar circumstances, in the case of Southend-on-Sea Borough Council v Meyers  EWHC 399 (Fam). This case concerned ‘undue influence and coercion’, which would require an expert’s assessment of P’s capacity being ‘sapped and overborne’ by coercion or undue influence.
However, the local authority considered that an easier and quicker safeguarding solution was to seek an interim injunction using Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 act”) than by using the inherent jurisdiction considering the tight timescales.
What antisocial behaviour law requires
Within the 2014 act the legal test to grant injunctions simply requires (with italics added) that:
- the court is satisfied on the balance of probabilities that the abuser has engaged or threatened to engage in anti-social behaviour, and
- it is just and convenient for the injunction to be granted.
Antisocial behaviour is defined by the 2014 act as “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person”. Furthermore, at the point of the initial application to court, a temporary injunction can be granted ‘if the court thinks it just to do so’.
Injunctions can last for an indefinite or fixed period and can include a prescriptive element, for example, in ordering the respondent to attend a course. A power of arrest, allowing for an arrest without a warrant can be attached to the order for antisocial behaviour that involve violence or threats of violence or where there is a significant risk of harm to other persons. Breaches are punishable by up to two years’ imprisonment and/or an unlimited fine.
How it helped in this case
The local authority successfully obtained an urgent hearing and the court granted an interim order for five weeks prohibiting assault, threats to assault, or causing or encouraging others to assault or threaten P; contact; coming within 50 metres of P’s property; persuading or coercing P to go with the respondent without permission of the local authority; interference with any care and support to P; requesting money and interference with P’s belongings. The order also contained a power of arrest, which made it explicit that an arrest without warrant could be made upon reasonable suspicion of breach.
Neither P nor his relative, both respondents to the proceedings, provided statements or attended any hearings despite being notified of subsequent hearings. The relative received a copy of the injunction and power of arrest using a process server.
The court granted a further six-week injunction to allow for further evidence gathering support to P. No breaches were detected and P’s engagement and physical and mental health improved significantly; this combined with significant new hearsay evidence provided anonymously by concerned members of the public meant that the court eventually granted a final injunction order for 12 months. Aptly, in line with the ethos of the 2014 act, the injunction also indirectly benefited the local community, as other people had expressed their own fear of the relative.
Comparison with other interventions
The 2014 act provided an effective legal safeguard in a timely manner. In contrast, the inherent jurisdiction would have likely delayed matters, while an expert assessment took place to identify undue influence or coercion. The assessment could also have been hampered by P’s reluctance to engage.
The 2014 act’s legal test of ‘just and convenient’, arguably a simpler and lower threshold than other remedies considered, made it easier to obtain an injunction. However in cases such as this where there is a reluctant victim of abuse, there has to be delicate balancing of P’s rights under Article 8 of the European Convention on Human Rights (ECHR), to private and family life, and the local authority’s positive duty to uphold his Article 2 right to life.
In this regard, the fact that P could not be moved by the powers of the 2014 act suggests it may be less restrictive approach of P’s rights and freedom than alternatives; this was all the more important because of P’s consistent and steadfast wish to remain living in his life-long residence.
Taking the burden off the victim
One unique and important advantage of using the 2014 act’s injunctive powers was to take away the responsibility and burden of safeguarding action away from the victim. The victim does not need to make the application and additionally, and sadly too rarely, the safeguarding action was a direct intervention to modify the abuser’s behaviours.
There is, however, a weakness with this approach, as with any injunction, which rests upon the quantity and quality of the monitoring for any breaches. Therefore, close working with the police and other agencies was also essential.
Health and social care professionals providing their evidence through detailed and comprehensive chronologies also significantly supported the success of the application, in addition to hearsay evidence.
In conclusion, the 2014 act can prove to be a highly effective, cost-effective, accessible and statutory alternative to use of the inherent jurisdiction in safeguarding vulnerable persons.
Kevin Chan is a legal assistant in a local authority legal service