Kirk v Devon County Council

Judge: Court of Appeal (Sir James Munby P)

Citation: [2017] EWCA 34

Summary

This is the sequel to the decision on contempt that we reported in the December 2016 Newsletter. The Court of Appeal, you will recall, allowed Mrs Kirk’s appeal against her imprisonment for contempt in the face of her refusal to enable the return of P (MM) from Portugal.  It also granted permission to Mrs Kirk to appeal the underlying decision of Baker J that it was in MM’s best interests that he be so returned.

The parties ultimately compromised the appeal and submitted a consent order for endorsement by the Court of Appeal essentially providing for the underlying order of Baker J to be set aside and for the issues to be reconsidered on a speedy basis. Sir James Munby P endorsed the order through gritted judicial teeth on the basis that, for the reasons set out for the parties it was the proper course to adopt and was in MM’s best interests.  He made clear that in approving the order he was proceeding on the footing that:

1. i) It is futile to make any further attempt to subject Ms Kirk to coercive orders designed to obtain MM’s return to this country, and the Court of Protection will not be invited to make any such order.
2. ii) Although the Court of Protection is to re-visit the question of MM’s best interests, the considered view of the Official Solicitor is, as matters currently stand, that, as Ms Butler-Cole put it, there is “no realistic prospect of MM returning to [Devon]” and “nothing further the courts here can do that has a realistic prospect of affecting MM’s situation” and that “it is not appropriate to expend any more of MM’s funds pursuing judgments or orders in relation to his welfare.”

Sir James Munby P felt it necessary to add more about the fact that the basis of the order was in essence Ms Kirk’s continuing obduracy:

12. On one view of the matter, Ms Kirk has achieved her objective by remaining adamantly obdurate in the face of the court’s orders; and the court now is simply caving in to her demands. It is a point which has troubled me, whatever her reasons may be for the stance she has adopted (a matter which there is no need for me to explore). I am persuaded, however, that this is not a reason why, in the particular circumstances of this case, I should refuse to approve the consent order.
13. The long-established principle is, as I put it in Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, para 52, referring to what Romer LJ had said in In re Liddell’s Settlement Trusts [1936] Ch 365, 374, that:

“the starting point is that the courts expect and assume that their orders will be obeyed and will not normally refuse an injunction because of the respondent’s likely disobedience to the order.”

As I said in Re Jones (No 2) [2014] EWHC 2730 (Fam), para 15:

“The normal approach of the court when asked to grant an injunction is not to bandy words with the respondent if the respondent says it cannot be performed or will not be performed. The normal response of the court is to say: “The order which should be made will be made, and we will test on some future occasion, if the order which has been made is not complied with, whether it really is the case that it was impossible for the respondent to comply with it.” There is a sound practical reason why the court should adopt that approach, for otherwise one is simply giving the potentially obdurate the opportunity to escape the penalties for contempt by persuading the court not to make the order in the first place.”

That said, however, there are limits to how far the court can go in seeking to coerce the obdurate. In the first place, as I went on to observe in Re Jones:

“I have to recognise that the court – and this is a very old and very well established principle – is not in the business of making futile orders.”

14. See also the discussion on this point in Re J, paras 60-62. Secondly, it is well recognised that there will come a point when even the most obdurate and defiant contemnor has to be released, despite continuing non-compliance with the court’s order. Well-known examples of this principle are to be found in In re Barrell Enterprises [1973] 1 WLR 19, 27, and Enfield London Borough Council v Mahoney [1983] 1 WLR 749, 755-756, 758.

In this case, it is important to note, the court is not caving in at the first sign of obduracy. Ms Kirk remains seemingly determined on her course despite having been taken to prison and, indeed, despite having spent some seven weeks incarcerated in what must for her have been most unfamiliar and very unpleasant conditions. Is there any real reason to believe that a further dose of this medicine might induce compliance within the kind of time it might be appropriate, having regard to the principles in Barrell and Mahoney, to require her to serve? I very much doubt it. Further attempts at coercion are most unlikely to be successful. Pressing on as hitherto is likely to be an exercise in futility. In the circumstances the consent order marks out the appropriate way forward.

An advice had been referred to relating to the difficulty of securing cooperation in Portugal. Whilst Sir James Munby P noted that he had not seen the advice, and that this may be the case in relation to Portugal, he:

… would not want it to be too readily assumed that the Court of Protection will be as powerless in other similar cases. If a similar problem arises in future, it might be worth exploring whether the foreign country would recognise and be prepared to give effect either to an order of the Court of Protection or to an authority, of the kind Ms Kirk was ordered to execute in this case, executed by a Deputy or by an officer of the Court of Protection. It is also worth bearing in mind that there have been cases where the foreign court has acted both decisively and speedily in ordering the return to this country of an incapacitated adult who had been taken abroad: see, for example, Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, paras 27-29.  

Comment

It is perhaps not entirely surprising that this decision does not appear to have been the subject of the same degree of media excitement as the contempt decision. It is, however, perhaps a rather more important decision, because it illustrates the limits of the court’s powers in the cross-border capacity.  It may well, however, be that earlier recourse to the taking of steps to obtain recognition and enforcement of English court orders would lead to better outcomes in other cases.  It is also important to understand that the mere loss of habitual residence does not lead to an ending of the jurisdiction of the court (albeit the High Court under the inherent jurisdiction) to take protective measures in relation to British nationals: see the decision of Peter Jackson J in Re Clarke, and Alex’s recent articles on adult abduction in the Elder Law Journal (more details on request).

COP jurisdiction and powers - International jurisdiction 30th January 2017