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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> PM v KH & Anor [2010] EWHC 870 (Fam) (30 April 2010) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2010/870.html Cite as: [2010] EWHC 870 (Fam), [2010] Fam Law 935, [2010] 2 FLR 1057, [2010] 2 FCR 639 |
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FAMILY DIVISION
(In Private)
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Judge of the Family Division)
____________________
In the Matter of HM (An Adult) PM |
Claimant |
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- and - |
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(1) KH (2) HM (by her litigation friend the Official Solicitor) - and THE STATES OF GUERNSEY |
Defendants Interested Party |
____________________
Ms Fareha Choudhury (on 5 February 2010 Ms Lisa Evans) (instructed by the Attorney General's Office, States of Guernsey) for the Interested Party
The First Defendant (mother) appeared in person
The Claimant (father) was neither present nor represented
Hearing dates: 2, 6 and 12 November 2009, 17 December 2009, 5 February 2010
____________________
Crown Copyright ©
Lord Justice Munby :
i) it was not in HM's best interests to reside with PM;ii) it was in HM's best interests to reside and be cared for at X;
iii) it was in HM's best interests to have contact with PM and KH.
"if I take HM out of the jurisdiction of England and Wales during any period of contact I have with her, I will return HM to the jurisdiction of England and Wales on or before the end of that period of contact."
i) it was not in HM's best interests to reside with either PM or KH;ii) it was in HM's best interests to have contact with PM and KH in accordance with the general principles of contact set out in the Fourth Schedule to the order and the contact arrangements set out in the Fifth Schedule;
iii) it was in HM's best interests to reside and be cared for at a new placement, Y.
"The specific contact arrangements should be discussed between PM and KH, each proposal by either parent being copied at the same time to the advocate and the care co-ordinator. In the event that PM and KH are able to agree what they consider the contact arrangements should be and if HM's advocate and the care co-ordinator are content that the proposals accord with HM's best interests, then those shall be the contact arrangements for the relevant period. In the event that PM and KH cannot agree, or if HM's advocate or the care co-ordinator are concerned that what is proposed by way of contact is not in HM's best interests, the care co-ordinator will make the decision."
"Before taking HM on holiday, PM and KH shall both inform the care co-ordinator (but pending appointment Guernsey HSSD) of their itinerary and contact numbers during the holiday and the care co-ordinator shall pass such information to the other parent."
"The parents have made practical arrangements for contact until the date proposed by [Y] for HM to come to [Y], which is 19th October 2009. HM has been with her mother but moved to her father's home on 8th October 2009 and the provisional plan is that HM's father will bring her [to Y] to see the placement in the week of 12th October and he will bring her [to Y] on 19th October to settle in."
PM's response, in an email later the same day, was that:
"Nothing has been 'agreed' and without consultation and discussion nothing is capable of being agreed."
"You 'implore me to reconsider and bring [HM] home' I take it by that you mean home to [Y] No, never!
One last point, [KH]. I am offering, subject to absolute, watertight guarantees from the relevant parties / governments / courts, to bring [HM] to Guernsey for 1 to 2 weeks over the period covering her 21st birthday, which I believe would be in [HM's] best interests and which she would most certainly enjoy.
The ball is in your court in respect of this offer "
"Subject: YOUR OPPORTUNITY TO BE 'A MENSCH'
So what I am saying (again) to you both is that your actions in 'freezing' assets that you thought belonged to me is wrong; and the only persons who will suffer are the girls.
[HM] and I are fine; we are well; we are managing despite the attempt at 'inconveniencing' us and to put it bluntly, will not be blackmailed the effect of which would be like selling out on [HM's] future for money or assets. I have more respect for her than that. Do you?
So now it's time to be A Mensch
Mensch (Yiddish: ????? mentsh, German: Mensch, for human being) means "a person of integrity and honor". The opposite of a Mensch is an Unmensch (meaning: an utterly cruel or evil person). According to Leo Rosten, the Yiddish maven and author of The Joys of Yiddish, mensch is "someone to admire and emulate, someone of noble character. The key to being "a real mensch" is nothing less than character, rectitude, dignity, a sense of what is right, responsible, decorous".
In Yiddish (from which the word has migrated into American English), mensch roughly means "a good person." A "mensch" is a particularly good person, like "a stand-up guy," a person with the qualities one would hope for in a dear friend or trusted colleague.
The opposite of a Mensch is an Unmensch (meaning: an utterly cruel or evil person)
The Choice is yours
And by the way, as you all seem determined NOT to consult or discuss anything with me, I can tell you that if you want any chance of [HM] and me coming back to the UK, you will need an Order that includes the following:-
1. [HM] to reside with me;
2 [HM] to be funded in her welfare, medical and educational needs by Guernsey;
3 [HM] to attend a day college placement at a suitable college, such as [BC] or [ST];
4 No action or sanctions will be taken against me and all 'inconveniences' removed."
i) PM's removal of HM to Israel was a blatant defiance of my decision and of the consequential order I had made that HM was to move to Y a move, which as PM was well aware, had originally been contemplated as taking place in September 2009 and which by middle October 2009 was planned for 19 October 2009. His purpose in taking HM to Israel appears clearly enough from his own words in the two emails I have quoted: HM would "never" go to Y and she was to reside with him. So he set out to sabotage the placement at Y just as he had earlier sabotaged the placement at X.ii) More specifically, PM's removal of HM to Israel without first notifying Mr Allen was a breach of paragraph 8 of the Fifth Schedule to my order.
iii) PM's failure to return HM after contact no later than 30 October 2009 was, given Mr Allen's decision in accordance with paragraph 3 of the Fifth Schedule, a breach of the undertaking that PM had given Roderic Wood J on 24 June 2009 as well as a breach of my order.
iv) Given these matters, and in circumstances where HM lacked the capacity to consent to what he was doing, PM's actions in removing HM from the jurisdiction were wrongful and unlawful as well as being quite plainly contrary to HM's best interests.
i) Hearing on 2 November 2009: Following the hearing on 2 November 2009 I made nine orders: two were injunctions directed at PM, one ordering him forthwith upon service to deliver HM into the care of KH in order to facilitate HM's return to this jurisdiction,[1] the other containing a raft of injunctive orders designed to protect HM from any further abduction by PM following her return to this jurisdiction; the third was an order, in a form modelled on that first used by Singer J in Re KR (Abduction: Forcible Removal by Parents) [1999] 2 FLR 542, inviting the cooperation in securing HM's return to the jurisdiction of the police authorities in this country and "respectfully request[ing] and invit[ing] all judicial and administrative bodies and police authorities of the State of Israel to render assistance in establishing the whereabouts of [HM] and facilitating her return to the jurisdiction"; the other six were orders directed to ensuring the attendance of three of PM's friends or associates at court on 6 November 2009 to give evidence as to his whereabouts.[2]ii) Hearing on 6 November 2009: Following the next hearing, on 6 November 2009, I made a further fourteen orders: the first was an order respectfully inviting the assistance of the Royal Court of Guernsey in establishing HM's whereabouts and facilitating her return to this jurisdiction; six orders were directed to ensuring the attendance at court on 12 November 2009 of the three individuals it had previously been intended to have at court on 6 November 2009;[3] the other seven orders were directed to obtaining disclosure of information[4] from a bank (to identify PM's bank accounts), from two travel agents (to provide information about tickets and flights), from PM's email service provider, from X (this order also prohibiting X from making any payments to PM pursuant to a consent court order entered into between them), and from PM's landline and mobile telephone service providers.
iii) Hearing on 12 November 2009: The next hearing was on 12 November 2009, when I heard oral evidence from each of the three individuals who had been summoned to appear. Each was examined in private, separately from the others, and was forbidden to disclose to anyone what had gone on. Following the hearing I made a further fourteen orders: one, freezing certain monies in DP's hands; three orders requiring the three witnesses to make immediate disclosure of any further communications they might receive from PM; an order permitting X to disclose the freezing order I had made following the hearing on 6 November 2009 to both PM (in part) and (in whole) to the Circuit Judge dealing with the proceedings between them; an order providing for the preparation at public expense of transcripts of the oral evidence I had heard on 12 November 2009; four orders directed to obtaining disclosure of information from two further friends or associates of PM, from the insurer of a property belonging to PM, and from another bank; an order discharging the order I had made directed to PM's email provider (it turned out that the order had been directed to the wrong company); an order appointing a named individual as HM's care coordinator with effect from 1 December 2009; an order freezing, until 17 December 2009, all PM's assets within the jurisdiction, including the monies held by DP, the monies payable by X, and the assets held in the name of various companies, but permitting the payment from a specified account of up to £250 per week to PM for his and HM's living expenses;[5] and an order requiring PM to make arrangements for HM's return to the jurisdiction forthwith upon service of the order upon him.
iv) Written application on 8 December 2009: Following a written application made to me by the Official Solicitor's solicitors with the agreement of KH and the States of Guernsey on 8 December 2009, I made three orders on 9 December 2009 for further disclosure by two banks[6] and by an airline.
v) Hearing on 17 December 2009: Following this hearing I made five orders: one order sought disclosure from the DVLA; two orders permitted KH to utilise funds in one of the blocked accounts (an account in the name of HM) for the purpose of discharging her costs of the litigation in this country since 30 October 2009 and of any future proceedings in Israel brought with a view to securing the return of HM to the jurisdiction, one of the orders authorising her to withdraw funds from the account and directing the bank to comply with any withdrawal request from her irrespective of any instructions to the contrary from or on behalf of PM; an order permitting the Official Solicitor to disclose certain documents to various relatives of PM; an order requiring PM to attend in person, bringing HM with him, any further hearing if given notice of the date of the hearing, and extending the freezing order until 31 January 2010;[7] an order directing DP to transfer the funds held by him to an account in the name of the Official Solicitor's solicitors (the purpose of this being to free DP from the operation of the previous freezing orders); and a collection order (in case PM tried to re-enter the jurisdiction clandestinely).
vi) Written application on 22 December 2009: Following a written application by the Official Solicitor's solicitors on 22 December 2009 I made an order on 22 December 2009 directing that no transcript of any of the previous or future hearings was to be provided to PM without the permission of the court.
vii) Written application on 27 January 2010: Following a written application by the Official Solicitor's solicitors on 27 January 2010 I made an order on 27 January 2010 further extending the freezing order until 14 March 2010.
viii) Hearing on 5 February 2010: The next hearing was on 5 February 2010. PM had been served with notice of the hearing but failed to appear, thereby further adding to his contempt (the order requiring him to attend having been endorsed with a penal notice).
i) Hearing on 5 February 2010: Following this hearing I made three further orders dated 5 February 2010: one was another order requesting assistance from the authorities in Israel and up-dating them on events since my earlier order of 2 November 2009; the second was an order for disclosure by another of PM's insurers; and the third was an order directing that there was no need to notify PM of certain expert evidence I had read during the hearing.ii) Written application on 18 February 2010: Following a written application by the Official Solicitor's solicitors on 18 February 2010 incorporating informal applications made by both PM and KH on 17 February 2010, I made two orders on 18 February 2010: one provided for the funding of PM's legal representation in the Israeli proceedings; the other for the similar funding of KH.[8]
iii) Written applications on 5, 10 and 11 March 2010: Following further informal written applications made by both PM and KH and transmitted to me by the Official Solicitor's solicitors on 5, 10 and 11 March 2010 (PM and KH both, of course, being litigants in person), I made two orders: one, on 11 March 2010, extending, for both PM and KH, the funding orders I had made on 18 February 2010 to cover the further hearings in Israel and making provision for the same purpose for the funding of HM's guardian; the other, on 16 March 2009, further extending the freezing order until 14 April 2010.
iv) Written application on 16 March 2010: It will be recalled that on 13 November 2009 the Royal Court had made provision for the payment of a maximum of £250 per week to PM for his and HM's living expenses, this being mirrored in one of the orders I made following the hearing before me on 12 November 2009. That had been from a Guernsey account blocked by the freezing order made by the Royal Court on the same occasion. In due course apparently on 21 December 2009 the funds in that account had become exhausted and on 2 March 2010 PM contacted the Official Solicitor's solicitors seeking the release to him of £3,000. Following that, and further written applications by the Official Solicitor's solicitors on 5 March 2010 and 16 March 2010, resisting the payment of any capital sum or back payment but agreeing ongoing weekly payments of £250, I made an order dated 16 March 2010 providing for the payment, with effect from 5 March 2010, of that amount from the funds (previously held by DP) held by the Official Solicitor's solicitors pursuant to the order I had made in December 2009.
v) Written application on 26 March 2010: Following further informal written applications made by both PM and KH and transmitted to me by the Official Solicitor's solicitors on 26 March 2010, I made a further order on 26 March 2010, further extending, for both PM and KH, the funding orders I had made on 18 February 2010, this time to cover the hearing in Israel in the District Court.
vi) Written application on 6 April 2010: Following a further written application by the Official Solicitor's solicitors on 6 April 2010, again incorporating an informal application made by KH, I made a further order on 9 April 2010, further extending, for HM's guardian, the funding order I had made on 11 March 2010, this time to cover the hearing in Israel in the District Court.
i) First, there were the various injunctive orders directed to PM, including a collection order.ii) Second, there were the various orders inviting the assistance of both domestic and foreign public (including judicial) authorities.
iii) Third, there were the various orders seeking information from various individuals, friends or associates of PM (three of whom who were also summoned to court to give evidence), from various banks, insurers and travel agents, from an airline, various telephone and email service providers and the DVLA, and from others (X and DP) thought to be holding monies for PM.
iv) Fourth, there were various freezing orders, some directed to specific individuals in relation to specific assets held by them (X and DP), the other a general freezing order in respect of all PM's assets which has been renewed from time to time.
v) Fifth, there were the various orders permitting frozen funds to be used to fund PM and HM's living expenses and to fund not merely PM's legal costs in this country and in Israel but also KH's costs both here and there and the costs of HM's guardian in Israel. Linked to these were orders directing DP to transfer monies from an account in his name to an account in the name of the Official Solicitor's solicitors, directing the relevant bank to honour those instructions whatever contrary instructions they might have from PM, and subsequently directing the solicitors as to the utilisation of funds in that account.
vi) Finally, there were the various orders designed to prevent PM knowing what was going on, though at the same time permitting appropriate disclosure to others.
i) First, to ensure the return of HM to the jurisdiction and her safety here once repatriated.ii) Second, to confirm that PM and HM were in fact in Israel (and not still in this country) and to locate precisely where they were, whilst being in a position to catch them if they attempted a clandestine re-entry to the jurisdiction.
iii) Third, to make clear to PM that, as I had put it in paragraph [117] of my previous judgment, "the court is not going to stand idly by, allowing the decisions it has taken in HM's best interests to be thwarted" and that the court would indeed not hesitate to have recourse to the "wide variety of remedies open to it to enforce its decision."
iv) Fourth, by freezing his funds, to deny PM access to the wherewithal to move himself and HM further away, or to relocate himself permanently out of the jurisdiction, whilst at the same time putting pressure on him ("coercing him") to comply with the court's orders: see Richardson v Richardson [1989] Fam 95 at pages 100, 101, citing Romilly v Romilly [1964] P 22 at page 23 and Con-Mech (Engineers) Ltd v Amalgamated Union of Engineering Workers (Engineering Section) (No 3) [1974] ICR 464 at page 467.
v) Fifth, by permitting the frozen funds to be utilised for this purpose, to enable the proceedings to be brought in Israel which had become essential if there was to be any chance of securing HM's repatriation to this country: cf Richardson v Richardson [1989] Fam 95.
"the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions. The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult. But this apart, the court's powers to make orders under the inherent jurisdiction in relation to adults would seem to be as wide as its powers when exercising its inherent parens patriae jurisdiction in relation to children. Just as there are, in theory, no limits to the court's powers when exercising the wardship jurisdiction I suspect that there are, in theory, few if any limits to the court's powers when exercising the inherent jurisdiction in relation to adults."
"In an appropriate case the court can also make tipstaff orders location orders, collection orders and passport orders in relation to an adult just as it does in relation to children."
i) The first and overriding priority was to ensure HM's removal from PM's care and her repatriation to this country, something which it had become apparent was going to be achieved if at all only by the commencement of proceedings in Israel. Those proceedings were, as I have already said, essential if there was to be any chance of securing HM's repatriation. I was not prepared to tolerate the possibility of KH's lack of resources and she was being reduced to trying to borrow from friends and relatives proving either an obstacle or even an occasion for delay. The essential need was to get the proceedings under way and to ensure appropriate funding both for KH, as the applicant, and for HM's court appointed guardian.ii) The direct and immediate cause of the need to commence proceedings in Israel was PM's actions in defying the orders of this court and abducting HM to Israel. The direct and immediate cause of the prolongation of those proceedings was PM's evident determination to fight as long as possible in the courts in Israel in order to stave off HM's return to this country. But for what PM did, there would have been no occasion either to block or to make use of PM's funds.
iii) I was careful to ensure that each of these orders made clear that what I was authorising was merely "in the first instance." The ultimate incidence of all these costs the question of whether PM or someone else should, at the end of the day, have to foot the bill is reserved for decision on a future occasion. It will be open to PM, if he wishes, to apply for relief, for example by asserting that he should not have to bear all or any of these costs and that others (KH, HM, the States of Guernsey or the Official Solicitor) should be responsible in whole or in part for the costs.
Note 1 Thus paragraph 1 of the order. Paragraph 4 stated that there was no requirement to serve the order on PM or notify him of it unless and until arrangements were in place to enable immediate enforcement of the terms of paragraph 1. [Back] Note 2 These orders contained injunctions forbidding those to whom they were directed communicating any information about the proceedings, including the service of the order, to PM. In the event they were not served, further orders (see below) being made for their attendance on 12 November 2009. [Back] Note 3 These orders also required those summoned to bring to court with them any communications they had received from PM since 6 October 2009 and, in the case of one of them (DP), who was believed to be holding monies for PM, also to bring to court any documentation he might have in relation to any monies he had received from or was holding for PM or any company on PMs behalf. [Back] Note 4 Each of these orders contained injunctions forbidding those to whom they were directed disclosing to PM either the making or contents of the order or any action taken by them in pursuance of it. [Back] Note 5 This proviso was included in accordance with the proviso to the same effect in the order made by the Royal Court of Guernsey on 13 November 2009 (see paragraph [26] below). [Back] Note 6 One of these orders also directed that if a certain account was in HMs name it turned out that it was it was to be subject to the freezing order I had made on 12 November 2009. [Back] Note 7 This order also amended the freezing order to permit PM to meet his reasonable costs of legal advice and representation in respect of the proceedings. [Back] Note 8 Each order provided for the utilisation for this purpose of the monies which, in accordance with the orders I had made following the hearing on 17 December 2009, had been transferred by DP to the account in the name of the Official Solicitors solicitors. Each order also made clear that this was merely in the first instance and that the ultimate incidence of these costs was reserved for decision on a future occasion. [Back] Note 9 The same point arises in relation to a retired High Court judge, who may act as a judge of the High Court by virtue of section 9(1) and exercise the inherent jurisdiction but who is likewise not able to act as a judge of the Court of Protection. [Back] Note 10 I can find nothing inMental Incapacity, the Report of the Law Commission (Law Com No 231) published in 1995 which led eventually to the 2005 Act, to suggest that this was something intended by the Law Commission. [Back]