From Mental Health Law Online
In this case PM had removed HM (an incapacitated adult) out of the jurisdiction following a best interests judgment with which he disagreed. This judgment discusses various orders which were made at a subsequent hearing. For orders, including in relation to anonymity/publicity, to be enforceable they must be drafted as injunctions and be clearly worded. The text of the orders is set out in an annex.
Re HM; PM v KH (2010) EWHC 3279 (Fam) - contempt
- Re HM; PM v KH (2010) EWHC 1579 (Fam)
This case represents a further iteration in a very long-running saga relating to the best interests of HM, the first judgment in the saga now being available at Re HM; PM v KH (2008) EWHC 2824 (Fam). The case continues to be decided under the inherent jurisdiction, hence why Munby LJ is entitled to continue to hear it.
This judgment is of particular interest for Munby LJ’s commentary upon an entirely standard form of wording that finds its way into most orders before the CoP, namely that (in this instance) “[t]he Second Defendant shall be referred to as ‘H,’ the Claimant as ‘PM’ and the First Defendant as ‘KH’ and nothing shall be reported that would identify H.” This was of importance because of the fact that PM had at an earlier stage been sending emails about the case, and the Official Solicitor and KH had expressed the view that he was breaking the terms of the order set out above.
As Munby LJ identified, wording akin to that material to this case first appeared in Re G (Adult Patient: Publicity)  2 FLR 528 (in which he had appeared as counsel for the OS). After a careful analysis of the order made in the case, Munby LJ made it clear that he considered (paragraph 23) that the words “[t]he Second Defendant shall be referred to as ‘H,’ the Claimant as ‘PM’ and the First Defendant as ‘KH’” did not operate as an injunction (paragraph 23); he further made it clear that he doubted whether the wording “nothing shall be reported that would identify” would be enforceable as an injunction.
Whilst the analysis conducted by Munby LJ undoubtedly governs the position under the inherent jurisdiction, it may be that the position is slightly different under the MCA 2005, given the provisions of Rules 90 and 91 of the Court of Protection Rules 2007 making it clear that proceedings under the MCA 2005 (unlike those under the inherent jurisdiction) are automatically held in private unless the Court directs to the contrary (and/or directs that specific information relating to those proceedings may be published). In the circumstances, it would seem that a person who disclosed information without permission of the court would be guilty of contempt of court even without specific injunctive relief. In any event, however, it perhaps serves as a reminder that, where a specific concern does exist in relation to an individual’s ability/desire to maintain the confidentiality of proceedings, any injunctive relief sought against that individual must be in specific terms.