Judge: Court of Appeal (Sir James Munby P)
Citation:  EWCA 34
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:
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:
“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)  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.”
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)  EWHC 870 (Fam),  2 FLR 1057, paras 27-29.
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).