A Local Authority v B, F & G

Summary: In this case, HHJ Cardinal was invited to make a Hadkinson order in respect of P's father, who was in contempt of court having breached an injunction preventing him from having contact with P, and subsequently refusing to attend court or to enter England from Scotland where he lived. A Hadkinson order is an order preventing any application to the court by a person who is in contempt of court until that person has purged himself of his contempt (Hadkinson v Hadkinson [1952] P 285). In that case, Lord Denning stated the principle in the following terms:

"... 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."

On the facts of the instant case, HHJ Cardinal was satisfied that the father's disobedience was impeding the course of justice, saying "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."

The judge held that Hadkinson orders could be made in the Court of Protection, against any party, and that there was no infringement of the father's rights under Articles 6 or 8 ECHR. The order was made 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."

Comment: This is the first reported decision in which a Hadkinson order has been made in the Court of Protection and provides useful confirmation that such orders can be granted, in appropriate circumstances. We note that the question for the court upon such an application is:

"whether, taking into account all the circumstances of the case, it is in the interests of justice not to hear the contemnor. Refusing to hear a contemnor is a step that the court will only take where the contempt itself impedes the course of justice. What is meant by impeding the course of justice in this context comes from the judgment of Lord Justice Denning in Hadkinson v Hadkinson [1952] P 285 and means making it more difficult for the court to ascertain the truth or to enforce the orders which it may make."

JSC BTA Bank v Mukhtar Ablyazov) [2013] EWHC 1979 (Comm) at paragraph 13 per Popplewell J