England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
Birmingham Civil Justice Centre
Priory Courts
Birmingham

		21st March 2014

JUDGE CARDINAL:

1. This case raises the novel point as to whether or not a Hadkinson order can be granted in the Court of Protection and whether or not, in the circumstances of this particular case, it should be. I am unaware of there being any previous such orders in the Court of Protection, though it seems to me that that is no impediment to one being made in a case like this involving contempt, such as this.
2. In the present proceedings in the Court of Protection, the local authority seeks an order providing for the long-term residence of B, a young woman who has not long ago attained the age of 18, and who resides in a residential care home at a confidential address. She has resided there or nearby, I think since 2007.
3. The Local Authority also seeks orders regulating the father's and the paternal grandmother's contact with B, and secondly, injunctive relief so as to prevent direct contact and the removal of B from her present address, and of course seeks to prevent any further inappropriate contact with her.
4. In support of the application, I have read a helpful position statement prepared by the Local Authority's counsel, Miss Lorraine Cavanagh. I am told that the Official Solicitor is neutral as to the application, and therefore, quite properly, has not attended today. The father seeks to resist the application before me for the Hadkinson order, but has not attended, though he has written, as I shall set out shortly.
5. I add at this stage that B has been subject to litigation for a good deal of her life, both by way of care proceedings and applications under the Inherent Jurisdiction of the Family Division, and she has been subjected to disputes between this Local Authority and her father for very many years.
6. The litigation during her minority was finalised in June 2012, when an order was made, I think by His Honour Judge Orrell, sitting as a Deputy High Court Judge pursuant to Section 9 of the Senior Courts Act.
7. The matter then came before Judge Plunkett days before B's majority in order to ensure that any declarations regulating her placement, contact arrangements and any protective orders were in place upon the expiry of the care order, and the injunctions made by His Honour Judge Orrell, sitting as a Section 9 Judge, on the 26th June 2012, were continued
8. What is concerning about this case is that the continued litigation is proving to cause stress, anxiety, upset and confusion to B. It is therefore very important that finalisation takes place and she knows her future. I intend to ensure that her wishes and feelings are taken careful notice of and taken into account when I come to dispose of this matter finally in early April, and I shall bear in mind what she says, but I also note that her wishes and feelings fluctuate from time to time. B will have the opportunity of meeting me if at all possible.
9. There is no doubt in my mind that B lacks capacity as to litigating the proceedings, and I can make another interim order if needs be under Section 48 of the 2005 Act. I have read a careful report by the independent Consultant Psychiatrist, Dr. Halstead, who makes it clear that this young woman lacks capacity as to litigation and as to making decisions as to her residence, care plan and contact, but the matter comes before me today because of the Local Authority's concern about the behaviour of the father, F, who lives in Scotland, where he has lived, I am told, for many years. He appears to have encouraged his daughter to think that when she attained the age of 18, i.e. when the care order to which she was subject expired, she would be going to live with him in Scotland. It is, by contrast, the Local Authority's view that it is in the best interests of B to have no contact at all directly with father or the grandmother, G, who is also a party, and that that situation should be reviewed only from time to time over the years.
10. The father opposes the Hadkinson order sought by the Local Authority today, but he goes further than that. He disputes his daughter's lack of capacity; yet he has failed to file any evidence contradicting that which Dr. Halstead has said. He accuses the Local Authority of bad faith. He has filed a position statement, dated the 18th September, which does not address the issues before me, but rather appears to be mainly an attack by him on the Local Authority's key social worker. He has also circulated a letter of the 17th March 2014, but that too does not deal with the position before me today at all, save that it says that he is considering a libel action against the Local Authority, which is not relevant and does not assist me. Perhaps more importantly, it says this, and I quote "I am not prepared to expose myself to possible imprisonment by travelling south to attend any hearings." So his non-engagement in the litigation process continues.
11. Why does the father not attend court in person? That is because, undoubtedly, indeed he concedes the same, he is currently in contempt of court and faces a substantial sentence of imprisonment. It is worth reading in detail the order of His Honour Judge Orrell of the 9th October 2012, to be seen at C58 of the original Local Authority bundle, and I make no apologies for reading it in detail because it makes the position clear. That says this: "Upon it being recorded that,

1.         On the 13th September 2012, the Court found to the requisite standard of proof that the father, F, was in contempt of court, to have breached the paragraph 1(a) of the injunction order of 29th June 2012 as F met with B at X train station between 19.10 hours on the 30th June and 1.40 on the 1st July.

(a)        B left her placement at or about 19.10 on the evening of the 30th June and failed to return in line with her curfew at 20.00 hours.

(b)        At or about 00.42, B telephoned the Police to ask to be collected from the train station.

(c)        At or about 01.35 hours, care staff arrived at the train station and observed B seated with a man whom they later identified as F.

(d)       On the 2nd July, at 17.40 hours she admitted to care staff she had made the arrangements to meet with her father on the evening of the 1st July at the train station.

2.         The Court was further satisfied to the requisite standard of proof that the meeting with B had been planned by F and that it had taken place for a considerable length of time, being approximately one hour; further, that JS and her father had met at the right-hand side of the station. B and her father had moved behind the station to a location that was out of sight of others.

3.         F was personally served with the order of the 13th September 2012 and a note of the judgment given by the Court on that date. F was afforded an opportunity to attend court that day and advance reasons why he should not be sent to prison for the contempt of court. He immediately informed the process server, upon being served with the aforementioned papers, he would not attend court unless someone paid for him to travel there. He failed to attend, and the Court proceeded to sentence him for the contempt in his absence.

4.         The Court is satisfied the father knows of this hearing today and the consequences of his failing to attend.

5.         The Court found he will continue to seek out B in defiance of this order, and thereby causing her distress, unless and until he serves a significant period in prison. He was sentenced to a twelve month period of imprisonment," which period of time he has not served.

12. From that date, I understand that the father has mostly remained out of the jurisdiction and has not been arrested and not served that sentence. And so it seems, as of today I have a father who is in contempt of court, who is subject to a sentence of imprisonment, against whom there is said to be a warrant of arrest, who has failed to file material evidence to help even himself, and who continues simply to attack the Local Authority, its officers, and even Miss Cavanagh in his position statement. He will not subject himself to the jurisdiction of this Court or seek to purge his contempt.
13. I need not delve in any further depth into the history of the case, save to observe I note there was an occasion when father retained B as a child in Scotland and did not return her, and there was an attempt in the past to remove B from her foster care, all apparently in defiance of court orders. Miss Cavanagh tells me there are historically many breaches of injunctions by him.
14. It is clear, however, that the Court needs to finalise this case for B's sake, and no manoeuvre or stratagem by this father should prevent that final hearing from taking place. If he does not lodge evidence that helps him, or properly argues his case, or comes to court to speak to his evidence, that is a matter for him, and he will reap the consequences of that, but should I go further?
15. In Hadkinson -v- Hadkinson, a 1952 case, the Court of Appeal dealt with a mother who wrongly took a child to Australia and appealed against an order that she should return the child within the jurisdiction. It was argued on appeal that the appeal should not be heard because the mother had been at all times, and still was, in contempt. The case note is worth observing. Two of the learned Lord Justices of Appeal said:

"It was the unqualified obligation of every person, against whom and in respect of whom an order had been made by a Court of competent jurisdiction, to obey it unless and until that order was discharged; that the mother in the present case had not brought herself within any of the exceptions to the general rule which debars a person in contempt from being heard by the Court whose order had been disobeyed, and that she, being in continuing contempt by retaining the infant out of the jurisdiction, her appeal could not be heard until she had taken the first and essential step towards purging her contempt by returning the child within the jurisdiction."

16. Likewise, in those proceedings, Lord Justice Denning, as he then was, went further, and he said this:

"I am of the opinion that the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues it impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth or enforce the orders which it may make, then the Court may, in its discretion, refuse to hear him until that impediment is removed or good reason is shown why it should not be removed."

17. There is no doubt in my mind that this father's behaviour impedes the cause of justice in this case. I can neither investigate the truth of father's case, nor can the Court deal with his disobedience of past orders until he submits himself to this Court's jurisdiction. This is particularly important in a case where it is said that the injunctions are necessary in the best interests of B, and the very case itself turns on the Court's ability to see that its orders are enforced and enforceable.
18. There is no doubt too that the principles enunciated in Hadkinson do not simply apply to an applicant or appellant but they apply to all parties. In the case of JSC BTA Bank -v- Mukhtar Ablyazov [2013] EWHC 1979 (Comm), Mr. Justice Popplewell said this:

"A contender is to be deprived of the opportunity to seek to influence the Court's decision-making process if he does not recognise the authority of the Court and is not willing to abide by its decisions."

That seems to me to be on all fours with this case. That is precisely the position here. It is therefore clear that a Court has the power to make a Hadkinson order affecting someone who does not obey its orders and who is in contempt, and it is plain to me too that it is appropriate to make such an order in this case.

19. What order is sought by Miss Cavanagh? At paragraph 18 of her position statement she seeks an order in the following terms:

"Unless F attends at this court in person at each hearing in this application he is not permitted to do the following:

(a)        file any evidence and/or any preliminary documentation setting out his position in respect of the applications before the Court at that hearing,

(b)        advance a positive case through counsel, advocate, legal representative or other person on his behalf at that hearing in respect of the application of the Local Authority to determine the capacity of B to make decisions as to her residence, her contact with others and her care and her best interests in respect of these areas of decision-making,

(c)        be heard through an advocate in court at that hearing, save for on an application to vary the terms of this paragraph."

20. When I initially read that suggested order I was slightly alarmed that it might be too wide-ranging, but it is not, for paragraph (c) enables the father, at any stage, to apply for the order to be varied, i.e. at any time before, or indeed during, the 7th April the father can apply for the position to be changed and the Hadkinson order set aside. I anticipate he will of course need to subject himself to the jurisdiction and to be within the jurisdiction to give evidence, but that of course is a matter for him.
21. Is a Hadkinson order Human Rights compliant in a case such as this? I am satisfied it is, because, first, this father has an opportunity to put his case, quite properly, if he chooses to subject himself to the Court's jurisdiction. He is not being treated in any way unfairly for the purposes of Article 6; and second, there is no question in my mind that the Court, in coming to its decisions, irrespective of whether father is here or not, will seek to apply the appropriate respect for the family and private life of all parties pursuant to Article 8.
22. The effect of the Hadkinson order is simply to make it clear to the father that it is for him to comply with the Court's orders and accede to the Court's powers.
23. This is an extremely serious case, where the father has repeatedly breached Court orders, it seems. This Court cannot sit idly by if he chooses to stay out of the jurisdiction, to make representations that are unhelpful and do not answer the questions at large and then does not attend to be tested by cross-examination.
24. The appropriate order is a Hadkinson order, and I have no doubt that Hadkinson orders can be made in the Court of Protection. There is nothing to show that the Court of Protection's powers, with regard to contempts of court, are any different in practice from those, for example, of the Family Division. I shall therefore make the orders that Miss Cavanagh seeks.
25. That leaves the question of publicity. I shall direct the Local Authority bespeaks urgently a transcript of this judgment. I shall then send it, once I have corrected it, to the Local Authority for them to be able to make representations as to anonymisation, if any. I shall also send it similarly to the Official Solicitor. Then and only then will the transcript be changed and placed on BAILII for all to see. It seems to me entirely appropriate that a case dealing with a novel point should be seen by all that wish to.

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