The inherent jurisdiction of the High Court: the regular red herring

I covered the basics of what the inherent jurisdiction is about in my previous post here. What this post will discuss is the reasons why it doesn’t provide a solution in the vast majority of cases.

The first issue that presents is obtaining sufficient evidence to make a case to begin with. The type of external control and influence to which this jurisdiction generally applies is, by its definition, difficult to pin down with any real certainty. It is rare for this type of influence to be blatant, with physical or verbal threats made in the presence of professionals. Most often, this takes place behind closed doors. It usually presents in more subtle ways: unexplained bruises, sideways glances and interrupted phone calls. The signs might be in body language or speech patterns. It can be difficult to meet the burden of proof based on such evidence as it’s difficult to say that it is more likely than not that these signs are indicators of abuse when so many other reasons can be presented: nervousness, distrust of services and the clichéd falls down the stairs, for example.

When describing this to the practitioners I work with, I talk about building a file over a period of time. Each incident of concern gets clearly documented and one day that pile of evidence will get big enough that a pattern is demonstrated that those excuses can no longer explain.

Sometimes, it isn’t even that clear. Sometimes the behaviour of that third party is neither that blatant nor that malignant. There isn’t always an element of malice, or even a deliberate intention by that person to control P. Sometimes that person thinks they are doing what is best and cannot see why their behaviour is a cause for any concern which makes it all the more difficult to build that file. It’s still theoretically possible to build a case without that element of intent, but it is a lot more difficult because all those other reasons are very difficult to rule out.

But if you do have that evidence, then what? All that does is potentially prove that there has been coercion or control. That doesn’t prove that this behaviour is influencing the person’s decision-making to the point that they are incapable of true decision-making. That requires a different pile of evidence, that might also be built up over time.

This evidence usually comes from a pattern of inconsistencies: answering questions one way when alone, and another when accompanied by the alleged ‘influencer’ or starting to answer one way and changing when the alleged perpetrator coughs, or nudges them under the table. Again, it’s small things that can amount to evidence of a big problem.

And what happens when you have the evidence? The work doesn’t end there. Making the application is costly, and time-consuming. That has to weighed against the prospect of getting the desired outcome from the proceedings.

It can take time to get hearing. In the serious cases, in the time it can take to get before a judge, the police will have already intervened under domestic violence powers issuing bail conditions, or obtaining a domestic violence prevention order. Better yet, the alleged perpetrator will be in custody.

The ones that social services are left with are rarely as clear cut. Which means sometimes, even with the best case recording, the evidence just isn’t there and there is nothing the local authority can do.

There may be nothing a court can do either. The powers of the court under the inherent jurisdiction are fairly limited. There are good policy reasons for that, absolute powers corrupt absolutely, and all that.

The scenario that this remedy envisages is this: the court is presented with evidence to clearly demonstrate that P is not making a free decision, and is making decisions due to the negative influence of another. They grant injunctions preventing the third party from having contact with P, and both the third party and P abide by that injunction. After a suitable period of time, the court asks what P would like to do, now they have had the time and space to come to a true and free decision. What they then do is decide that actually they do agree with the agency that brought the proceedings and they go off and live a happy and leisurely life.

There are a lot of ‘ifs’ there. We’ve already discussed the evidence ‘ifs’, and the difficulty of convincing the judge to make an order. But people are messy. Sometimes P doesn’t want to be separated from the third party and will do everything they can to see that third party. And that might be a sign of the extent of the control exerted, or it might be evidence of P’s true, heartfelt wishes. Telling the difference is impossible, in which case P’s right to autonomy will take precedence and the relationship will continue.

Or the third party might go to great efforts to continue to contact P. Where direct efforts are prevented, they’ll seek indirect contact through fake social media profiles, or use of an intermediary. The measures needed to stop this will become increasingly restrictive for P, who should not be punished for the behaviour of a third party. That might tip the scales and make the actions disproportionate from a human rights perspective. It might just make an untenable situation, since enforcement of the injunction may or may not be possible, given that it will be necessary to prove that the person breached the injunction beyond all reasonable doubt, which is a high threshold indeed.

Then there’s the big unknown, the big gamble that anyone making this application is making: what if, after all that hard work and having had the benefit of space and time, P still makes the same decision? What if their free decision is to continue the life they lived before?

Well then those professionals are left with the small comfort that they did everything they could. And that’s about it.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority