Domestic abuse and contact with elderly relatives

One thing is certain in life: we all get older. Many of us will become frail and vulnerable. Each family situation is unique, but it is quite common for someone (perhaps a friend or family member) to move in to live with an elderly person to care for them. Alternatively, sometimes an elderly person will go and live in the home of other family members – perhaps a son or a daughter. There is no doubt that in the vast majority of these situations an older person receives loving care from unpaid carers – but sometimes (as many elder client advisors know) this can lead to abuse.

Research by Age UK indicate almost half a million people aged over 65 will experience some form of abuse or neglect. The Office of the Public Guardian have recently revealed a 64 per cent increase in investigations of abuse of Powers of Attorney or Deputyship Orders.

The Domestic Abuse Act of 2021 defines domestic abuse as physical or sexual abuse, violent or threatening behaviour, controlling or coercive behaviour, economic abuse or psychological or emotional or other abuse. Many will stakeholders recognise that such abuse often leads to abuse in connection with wills, property, inheritance or financial transactions. It is quite easy for private client advisors unwittingly to become involved in the assistance of such abuse – perpetrators of abuse often cynically present as charming, caring and loving individuals – to the outside world.  

There are two scenarios.

Family lives with Mum

The first scenario was illustrated by the tragic case of Joan Blass – where a previous unknown individual moved in to live with Joan Blass at a time when she dementia.

Unknown to Joan’s friends and family the individual married Joan without their knowledge. Joan’s daughter, Daphne Franks, has led a campaign to highlight these issues of predatory marriage and abuse.

There is, however, a potential remedy – which sadly not many members of the public know about – and which is quite expensive to achieve. A similar situation arose in a case that became known as WU & BU & Others [2021] EWCOP 54 (the names of individuals are not reported in Court of Protection cases and parties come to be known by initials). WU was a 70 year old lady with vascular dementia and an estate worth £1.3 million. She was befriended by an individual referred to as NC. He was 53 years old.

He had been divorced twice and had periods of imprisonment. He sought the financial assistance from WU. As often happens in these cases WU did not even appreciate that she was being abused. WU told the judge that she, the judge, “held her life within (her) hands.” She perceived that her future happiness was bound up in her relationship with NC. In circumstances where personal autonomy and life choices are a central aspect of Human Rights it is only in limited circumstances where the court can or should intervene. 

The court did, however intervene and issued a variety of orders against NC including a “forced marriage protection order.” The court also made an order providing there was to be no contact between NC and WU. These orders were made under Section 16 of the Mental Capacity Act 2005 and under Section 63 A of the Family Law Act 1996. It was also argued the court had inherent jurisdiction to prevent a marriage or a civil partnership.

It is a tribute to BU’s daughter and her lawyers that these proceedings got off the ground. These proceedings can clearly be successful in appropriate circumstances – but it is, of course, necessary to show that the relevant individual lacks capacity to make decisions about contact. If she did have capacity, then the court could not have made an order in this way.

Mum goes to live with family

The other situation that can arise is when a vulnerable adult goes to live with one member of the family and other family members or friends are excluded. This is perhaps a more common situation – and it makes it much more easy for the host family to control access to their home. This situation is typified in the case of Re Edwards 2007 EWHC [1119] (Ch). This was a case where the will of Winifred Edwards was set aside because of undue influence from her son – Terry. Winifred remained living in her own home but access was controlled by Terry.

It is important to appreciate that the judge in this case found that Winifred had testamentary capacity – but that she was vulnerable because of her isolation from other friends and family.

The judge said: “there is also no doubt in my mind that Terry had the opportunity to use undue influence in persuading his mother to change her will. He had taken his mother back to 20 The Avenue (her home) despite medical advice to the contrary. He had deterred John and Carol (her son and his wife) from visiting, even if there was no formal ban, and he had tried to push John out of the house on the day that the will was executed. She was frail and vulnerable and frightened of Terry.”

The Court of Protection does have the power to make interim orders and injunctions (Rule 10.10 of the Court of Protection Rules 2017). 

There are, however, practical and legal disadvantages with an application of this type. The legal restriction is that, as already indicated, the jurisdiction in the Mental Capacity Act 2005 is only invoked if a person lacks capacity due to an impairment of or a disturbance of the functioning of the mind or brain. If a friend or family member has been excluded from seeing a vulnerable person, it may be difficult to obtain that evidence.

As was mentioned in BU the applicant sought to invoke the court’s inherent jurisdiction. It has been argued by Josh Lewison of Radcliffe Chambers that an English court could have a great deal of sympathy towards an application to prevent the isolation of a vulnerable person even if that person has capacity to deal with their affairs – see his article “Elder Abuse and anti-isolation injunctions.” Even Lewison would recognise that such an outcome is only “tentative.” 

Conclusion

Two things are clear. Inappropriate contact with vulnerable adults is a real and growing issue. The second conclusion is that the practical implementation of the law is lagging behind victim need. 

It is to be hoped that before too long an appropriate case will give positive endorsement to victim’s rights and to develop this fledging jurisprudence. Finally, I would like to express my thanks to Josh Lewison of Radcliffe Chambers and Charlotte John of Gatehouse Chambers for their inspiration with the preparation of this article – both of whom have written detailed articles on this issue.

Stephen Lawson is the head of contentious probate at Nicholson Jones Sutton Solicitors njslaw.co.uk 

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