Re HM; PM v KH [2010] EWHC 870 (Fam)
The case involved the abduction of P by his father to Israel in contravention of a best interests declaration. The judgment describes the various orders which were made to secure the return of P. Discussion of court's powers in relation to adults lacking capacity. The court has exactly the same powers when it is concerned to locate the whereabouts of a missing or abducted adult lacking capacity as when concerned to locate the whereabouts of a missing or abducted child.
Related judgments
Re HM; PM v KH [2010] EWHC 3279 (Fam) - contempt
Summary and Commentary
This is the most recent decision in an long-running case before, now, Munby LJ under the inherent jurisdiction relating to the abduction of an incapacitated adult. For details of the background, the reader is referred to the judgment of Roderic Wood J in Re HM; PM v KH [2009] EWHC 2685 (Fam).
The case of is of particular importance because Munby LJ sets out in some detail (paragraphs 32 ff) his views as to the powers of the Court in cases under the inherent jurisdiction to make orders of the following kind: (1) injunctive orders directed to a respondent (PM) with custody of an incapacitated adult (HM), including a collection order; (2) orders inviting the assistance of both domestic and foreign public (including judicial) authorities; (3) orders seeking information from various individuals, friends or associates of a respondent (including summonses 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 thought to be holding monies for PM; (4) freezing orders, some directed to specific individuals in relation to specific assets held by them, the other a general freezing order in respect of all of a respondent’s assets which has been renewed from time to time; (5) various orders permitting frozen funds to be used to fund living expenses and to fund not merely PM's legal costs in this country and in Israel but also the living costs of HM and her mother (KH) costs both here and there and the costs of HM's guardian in Israel, together with directing a third party 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 and (6) various orders designed to prevent PM knowing what was going on, though at the same time permitting appropriate disclosure to others.
As Munby LJ noted, all of these orders would be familiar in the context of the location and recovery of missing or abducted children; he took the view that the Court had the power to make such orders in the case of an incapacitated adult, at least under the inherent jurisdiction. He was at particular pains: (1) to indicate the basis (paragraphs 36-8) upon which the Court in relation to children had the jurisdiction to order information to be provided by third parties where there is reason to believe that such information would lead to the location of the missing adult; and (2) to indicate the basis (paragraphs 39-40) of the Court’s powers in relation to children to seize or block access to funds. He then went on to hold that (citing his own decisions in Re SA; A Local Authority v MA [2005] EWHC 2942 (Fam) [2006] 1 FLR 867B and Re HM; PM v KH [2009] EWHC 2685 (Fam) that the Court has exactly the same powers in relation to a missing adult lacking capacity as it does in relation to a missing child.
The principles elucidated by Munby LJ in Re HM would, it seems, be equally applicable to a case proceeding in the Court of Protection (by virtue of s.47(1) MCA 2005, which provides that “[t]he court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.” The case is therefore of importance for anyone concerned with the – relatively rare, but far from isolated – circumstances in which P has gone missing and the involvement of a particular individual is suspected
Citations
Re HM (Vulnerable Adult: Abduction) [2010] 2 FLR 1057B
Re HM (vulnerable adult) (abduction); PM v KH and others [2010] 2 FCR 639