HM (An Adult), PM v KH & Anor

On 28 October 2009 I handed down a judgment explaining the order I had made on 6 September 2009 following a four-day hearing before me in August 2009: Re HM (Adult), PM v KH and anor [2009] EWHC 2685 (Fam). On 30 April 2010 I handed down a judgment which brought the history of events down to that date: Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam).

I take those judgments as read and do not propose to set out the background. It suffices to record that the first of those judgments set out my reasons for declaring that it was in HM’s best interests to reside and be cared for at Y and described how, despite that order, her father, PM, removed her to Israel. The second judgment set out, amongst other things, the steps that had had to be taken both in this country and in Israel before HM was returned to this county on 8 April 2010 in the care of her mother, KH, pursuant to orders made by the Family Court, District Court and Supreme Court of Israel.

My purpose in this judgment is to explain the various orders I made at a further hearing before me on 30 April 2010 which PM, although he had been given notice, chose not to attend.

For that hearing the Official Solicitor, as HM’s litigation friend, filed a position statement explaining that he agreed with the States of Guernsey, as indeed KH did, that HM should move to Y in accordance with the transition plan proposed by the States of Guernsey. PM set out his position in two emails. In the first, dated 29 April 2010, he made a catalogue of complaints about just about everybody; his essential stance was that HM should not be placed at Y until what he called “the risk of grave danger” had been “properly and independently assessed.” In the second, dated 30 April 2010, he complained that the Official Solicitor’s solicitors had not supplied him with certain documents relating to the proceedings.

Following the hearing on 30 April 2010 I made a further nine orders:

One order provided for HM’s welfare needs. I approved the transition plan for HM to take up residence at Y which, as I am satisfied, not least in the light of all the professional evidence I have read and heard, remains in HM’s best interests. The “danger” to which PM refers exists only in his mind and reflects nothing more than his inability to accept anything which does not accord with his own entrenched views. I also imposed a raft of injunctions against PM which I am satisfied are imperatively needed, at least for the immediate future, to safeguard HM’s welfare, and her placement at Y, and to control PM’s seemingly unrestrained and potentially destructive behaviour. Finally, the order directed a further hearing before me in July 2010 for a review and determination of the question of costs.

Another order, which I was invited to make by the Official Solicitor, KH and the States of Guernsey, provided for the release to PM in two stages (initially the sum of £20,000 and thereafter the balance) of the funds previously held by DP and blocked by the order I had made in December 2009. The unblocking of those monies was foreshadowed in paragraph [52] of my previous judgment. Given that the other parties all consented to my making the order, and consistently with what I had said in my previous judgment, it was plainly appropriate to unblock these funds.

Another order continued until 14 September 2010 the order I had made on 14 April 2010 blocking the funds held by X (see paragraph [51] of my previous judgment). My reason for doing so remained as before, namely that the evidence satisfied me that there is a real risk that PM would seek to place his assets beyond the jurisdiction of the court, thereby prejudicing the claims for costs which both the Official Solicitor and, now, the States of Guernsey propose to make against him (see further below).

Five orders discharged various orders I had made on 12 November 2009 relating to the three individuals who had appeared and given oral evidence at the hearing on that date and to the two further friends or associates of PM who are referred to in paragraph [24(iii)] of my previous judgment. My reason for making these orders is as set out in paragraphs [50], [53]-[54] of that judgment.

The final order, in addition to giving various general directions, dealt with five matters:

It recited the disclosure already made to PM by the Official Solicitor’s solicitors and provided that if PM sought to assert that any further documents ought to be disclosed he should apply on notice.

It gave directions in relation to the committal application which the Official Solicitor informed me he proposed to make against PM. Included amongst them was a direction that the committal application was not to be listed before any of the six judges of the Family Division who have previously dealt with this litigation.

It gave directions in relation to the costs applications being made against PM both by the Official Solicitor and by the States of Guernsey.

It directed the Official Solicitor’s solicitors to provide an account (and supporting documentation) in respect of the funds previously held by DP.

Finally, it gave directions in relation to any application by PM in respect of costs or in respect of the sums expended from the funds previously held by DP.

The injunctions contained in the order referred to in sub-paragraph (i) above are set out in the Annexe to this judgment. They are in large part self-explanatory and require little further justification given all the matters set out in my two previous judgments. I recognise that they are swingeing in their effect. I regret the necessity which compels me to make them. But PM has now on two occasions (see paragraphs [4] and [18] of my previous judgment) sabotaged or attempted to sabotage the placements which the court had found best met HM’s needs. I am left with no option but to put in place the protective measures which, I am satisfied, are essential if PM is to be prevented from similar sabotage in future. I recognise also that the injunctions interfere to a very significant extent with PM’s relationship with HM, his daughter, and in a manner which requires cogent justification if there is not to be a breach of his (and, indeed, her) rights under Article 8 of the Convention. But the immediate imperatives are:

to enable HM to become settled – settled both generally and in her new placement at Y – following the massive disruption to her life, routines and other family relationships resulting from PM’s abduction and keeping of her in Israel from October 2009 until April 2010; and

to ensure that HM is safe and is not again abducted by PM.

I hope that the time will come when PM is able to demonstrate that the regime constraining him can appropriately and, from HM’s perspective, safely be relaxed. But for the time being I cannot ignore his response to the order I made in September 2009 – an order which, for all his subsequent bluster and abuse, was much less restrictive of him and his involvement with Y than had been proposed by the Official Solicitor. He has defied the court; he has abused the trust which the parties and the court placed in him by not subjecting him previously to injunctive restraints; he has abused his parental duties and responsibilities to HM and acted in a manner quite plainly contrary to her best interests; and he has twice sabotaged the arrangements that the court has put in place in order to further HM’s best interests. In the circumstances, and HM’s safety being at stake, I must err, if at all, on the side of caution. If in the result this all presses hard on PM then he has to realise that he has only himself to blame. My purpose, I stress, is not to be punitive but merely to ensure that HM is safe and happy and able to enjoy the family life with her mother and sister that PM so ruthlessly and selfishly denied her.

The injunctions in paragraphs 12 and 13 of the order, restraining PM from publishing and communicating various information, require some further explanation.

At an earlier stage in the litigation, on 28 February 2007, Sumner J had made an order which, so far as material for present purposes, was in the following terms:

Following the hearing before me in August 2009 both KH and the Official Solicitor expressed concerns that PM was breaking this order by sending emails to various people containing details about the case and about HM and the other parties. I was sceptical as to whether the order would actually bear the weight which the Official Solicitor was seemingly putting on it. In the event the Official Solicitor did not press the matter at the time.

PM continued, both before and after he had abducted HM, to circulate information about HM and about the proceedings to various people by email. I am satisfied that an order in the terms of paragraphs 12 and 13 is necessary in order to protect HM and KH whilst not interfering disproportionately with PM’s rights, whether under Article 6, Article 8 or Article 10. It will be noticed that the injunctions are not contra mundum – they bind only PM – and that they are limited in their effect. The injunction in paragraph 12 is qualified by the important words in the proviso at the end. The injunction in paragraph 13 is confined to matters which are private to HM and her family and in relation to which they themselves have enforceable rights under Article 8. And it is, of course, open to PM to apply to have these injunctions, like all the other injunctions, discharged or varied if he thinks they ought not to have been granted.

In the circumstances this is a convenient opportunity to explain why I had misgivings about the efficacy of the order Sumner J had made, even though it was in terms which in one form or another are so familiar as almost to have become routine in cases involving incapacitated adults. To say that such an order is not worth the paper it is written on when it comes to controlling behaviour such as PM is indulging in here may be an exaggeration – but only slightly. Let me explain.

Orders in something like this form first appeared, I think, in Re G (Adult Patient: Publicity) [1995] 2 FLR 528, a case in which, as it happens, I was involved, whilst still at the Bar, as counsel for the Official Solicitor. It was a case where a hospital trust was seeking a declaration that it could lawfully discontinue life-sustaining treatment to a patient in a persistent vegetative state. At a preliminary hearing before Sir Stephen Brown P, two questions arose. The first question was whether the President had power to sit in private for the substantive hearing and, if he did, whether he should exercise his discretion to do so. Following Scott v Scott [1913] AC 417, the President held that he did have power to sit in private. He went on, however, to decide as a matter of discretion, and having regard to the public interest, that he should sit in public, in open court. It was in that context that the second question then arose, as to whether the identities of the patient, his family and certain of the witnesses should be protected.

So far as that is that concerned what the President said (at page 532) was this:

For a full understanding of precisely what the President ordered, and why, it is necessary to consult certain documents which the Official Solicitor has kindly provided at my request: the skeleton argument on behalf of the Official Solicitor which I and my junior, Miss Caroline Harry Thomas, had prepared and which is referred to by the President in his judgment; the official transcript of the President’s judgment which contains, as the law report does not, the colloquy following judgment; and, most important of all, the order actually made by the President.

It is convenient to go first to the order. So far as material for present purposes the order provided as follows:

It will be seen that the order fell into four parts: first, the recital, second, the order in paragraph 1, third, the order in paragraph 2 and, fourth, the order in paragraph 3. The recital and paragraph 3 of the order require little further explanation beyond that provided by the President in the passage in his judgment I have set out above. Paragraph 3 was, in form and effect, an injunction. It prohibited the publication of certain information: certain names, addresses and photographs. In contrast to the orders in paragraphs 1 and 2, it was directly addressed to those intended to be bound by it, just as, in my judgment, every injunction must be if it is not to fail on grounds of unacceptable ambiguity: see Harris v Harris, A-G v Harris [2001] 2 FLR 895 at para [288] and Re S-C (Contempt) [2010] EWCA Civ 21, [2010] 1 FLR 1478, at para [17]. Since the injunction was contra mundum it accordingly provided that “no person shall publish … etc.”

On the other hand, neither the order in paragraph 1 nor the order in paragraph 2 was an injunction, whether in form or in effect. Neither was addressed to anyone in particular or to any group or class of individuals. They may have directed, in the abstract as it were, that something was or, as the case may be, was not to be done. But they did not order anybody or any group of people either to do or not to do something.

This was not the result of some unintended defect in the drafting. It was because paragraphs 1 and 2 of the President’s order were not intended to be injunctions and were not. They were, in intention and effect, administrative, case-management directions dealing with two matters. The first (see the words “for the purposes of these proceedings” in paragraph 1), being the manner in which the case was to be shown in the Daily Cause List and in the notice outside the court. The second (see the words “during the trial” in paragraph 1 and the corresponding words “at the trial” in paragraph 2), being the manner in which certain people were to be referred to during the hearing, paragraph 1 dealing with how they were to be referred to by the advocates, the judge and other witnesses and paragraph 2 dealing, as it were, with how they were to be allowed to refer to themselves.

I shall return to paragraph 1 in due course, but focussing for the moment on paragraph 2, there are four points to be made:

First, it will be appreciated that although the direction in paragraph 1(a) would have been required whether or not the case was listed in open court (subject to the omission of the words “and during the trial” if the hearing was in private), the remaining directions in paragraphs 1 and 2 were required only because the hearing was to be in open court.

Second, the power of the court to give the direction in paragraph 2 was, as I submitted to the President, established by R v Socialist Worker Printers and Publishers Ltd ex p Attorney-General [1975] QB 637 and Attorney-General v Leveller Magazine Ltd [1979] AC 440: in a proper case, the court, even if it would not be justified in sitting in camera can allow a witness giving evidence in open court to conceal his identity.

Third, although the effect of such a direction on its own may not have been entirely clear in 1994 (see the various views expressed in Attorney-General v Leveller Magazine Ltd [1979] AC 440, though see now Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2004] UKPC 26, [2005] 1 AC 190), the court has since 1981 had statutory power to grant a contra mundum order to ensure that its direction is complied with: section 11 of the Contempt of Court Act 1981. Hence the inclusion of paragraph 3 in the President’s order and hence the reference in paragraph 3 to section 11.

Fourth, paragraph 2 was not directed to the world at all; it was merely a direction permitting certain witnesses to do what they would otherwise not have been permitted to do, namely not to disclose their names and addresses. Paragraph 3, which in contrast was directed to the world at large, was an injunction designed to ensure that the purpose underlying the directions in paragraphs 1 and 2 was not frustrated.

In relation to paragraph 1 of the President’s order I should add this. The purpose and effect of paragraph 1 was not made explicit on the face of the order. But it was a matter canvassed with the President in the colloquy following judgment. As the transcript shows, it was suggested to the President that the effect of paragraph 1 of the order was that the court’s process and orders should themselves be headed ‘In re G’ rather than with the actual name of the patient. The President rejected that suggestion, accepting my submission that “It is one thing to say the list outside the court should have some suitable anonymous initial” but that it is “a nonsense for the court’s process to be headed with anything other than the proper title to the action”. The President expressed the distinction as being between “the listing” and the “process” or the “actual summons”, making it clear that paragraph 1 was confined to the former and did not include the latter. Hence what I have said in paragraph [19] above.

The short point, in summary, is that:

much of what was included in paragraphs 1 and 2 of the President’s order was there only because the case was to be heard in open court; and

the orders in paragraphs 1 and 2 were not intended to be and did not take effect as injunctions.

Now much of this appears to be misunderstood, which is why I have explored the matter at some length. My experience is that in cases involving incapacitated adults orders are frequently made, as indeed in the present case, in terms incorporating much of the language of paragraph 1 of the President’s order but in circumstances where (a) the hearing is going to be in private, (b) the assumption is that such an order requires the court’s process and orders to be in anonymised form and (c) there is a belief – probably more accurately an unspoken assumption – that such an order is enforceable as an injunction. As will now, I hope, be apparent, this is all quite unsound; in particular the assumption or belief that such an order operates as an injunction.

In the present case the order included the words “and nothing shall be reported that would identify H.” As matters have turned out there is no need for me to decide whether this would have been enforceable as an injunction. I am not saying that it would not, but I have to say that I have my doubts, given the principle as I have summarised it in paragraph [17] above. Hence my scepticism when the issue first arose last year. Be that as it may, there can be no doubt about paragraphs 12 and 13 of the order I have now made. Those paragraphs, which are expressly directed to PM, contain injunctions, enforceable as such, which, if he breaches them, will expose PM to all the penalties for contempt of court, including but not limited to committal to prison.

The practical message is, I hope, clear. If it is desired to have an order enforceable, if the need arises, as an injunction it should be drafted in the way in which injunctions are usually drafted and, moreover, in terms which are clear, precise and unambiguous.

The relevant parts of the order containing the injunctions provide as follows: