PM v KH & Anor

The High Court’s inherent jurisdiction over an adult lacking capacity is, apart from the incidents of wardship, as extensive in practical terms as its jurisdiction over a child. When such an adult is missing or abducted, the court may order disclosure from third parties, require witnesses to attend, issue Tipstaff and injunctive orders, seek assistance from domestic or foreign authorities, and freeze or control the abductor’s assets.

Information orders may extend to innocent persons and mere witnesses. A possibility that they hold useful information is sufficient. Legal professional privilege and the limits of Norwich Pharmacal disclosure provide no answer. The court may also authorise controlled assets to fund necessary foreign recovery proceedings, subject to later determination of the ultimate incidence of costs.

HM was an adult who lacked capacity. Earlier orders under the High Court’s inherent jurisdiction determined that she should live in a supported placement and have regulated contact with her parents. Her father, PM, removed her to Israel in breach of an undertaking and court orders, thereby preventing the placement and acting contrary to her best interests.

The court subsequently made injunctions, disclosure and witness orders, requests for domestic and foreign assistance, Tipstaff orders, freezing orders, and directions permitting controlled funds to meet living expenses and legal costs. Proceedings in Israel ultimately secured HM’s return to England.

The central issue was whether the court had jurisdiction, and was justified, in using the remedies ordinarily employed to locate and recover an abducted child where the missing person was an adult lacking capacity.

1. All the material orders were within the court’s jurisdiction and were justified. The inherent jurisdiction concerning an adult lacking capacity gives the court, apart from the automatic incidents of wardship, powers practically equivalent to those available for a child. The court therefore had the same powers to locate and recover HM, protect her following return, obtain information, freeze assets and control funds as it would have had in a child-abduction case.

2. The court may direct information orders to public authorities, communications providers, financial institutions, travel businesses, and relatives or associates who may know the missing person’s whereabouts. It may compel attendance and oral evidence. These powers extend to innocent persons and mere witnesses. It is enough that the person may possibly possess useful information; probability is unnecessary. Legal professional privilege provides no answer, and the limiting principles of Norwich Pharmacal disclosure do not govern this protective jurisdiction.

3. Without-notice proceedings, restrictions on service and disclosure, and private or secret hearings may be necessary to avoid alerting the abductor and frustrating recovery. Such secrecy is justified where it is required to enable the court to achieve justice according to law and protect the missing person.

4. The court could restrain PM’s access to assets, apply coercive pressure for compliance, and direct that controlled funds be used to finance the foreign proceedings necessitated by his wrongful conduct. This power was not confined to property formally sequestered. It extended to assets brought under the court’s control by freezing and related orders. Any application of Civil Procedure Rules 1998 Part 25 did not exhaust these remedies because rule 25.1(3) preserved the inherent jurisdiction.

5. The use of controlled funds for KH’s costs and the costs of HM’s Israeli guardian was justified because the Israeli proceedings were essential to HM’s recovery and had become necessary through PM’s defiance. The authorisations operated only in the first instance. Final responsibility for the costs remained reserved.

6. Once HM returned, the broad freezing and secrecy measures were no longer required. A limited freezing order remained temporarily in force to protect a prospective costs application against a real risk of dissipation. PM was to receive the previously withheld orders, transcripts and expert evidence, while questions concerning the remaining blocked funds were left for an inter partes hearing.

• High Court (Family Division): In [2009] EWHC 2685 (Fam), the court determined that HM should not reside with either parent and should reside at a supported placement. PM did not renew his application to the Court of Appeal for permission to appeal.

• High Court (Family Division): In [2008] EWHC 2824 (Fam), Roderic Wood J declared that it was not in HM’s best interests to reside with PM and that she should live at an earlier supported placement.

• Israeli courts: Following PM’s removal of HM to Israel, the Family Court ordered her return. The District Court temporarily extended a stay, and the Supreme Court refused a further stay. HM then returned to England.