Removing P to another country to evade the orders of the Court

By Celia Kitzinger, 9th July 2023

If you believe the authorities are acting against the best interests of your vulnerable relative, you might contemplate escaping with them to another country, in the hope of taking the person outside the reach of the Court of Protection.  I often hear conversations about this.  

For most people it isn’t really practical, but sometimes – especially when people have family members living abroad – they find a way to put that plan into effect.  That’s what seems to have happened in this case.  

The mother has taken her 21-year-old daughter – I’ll call her Miranda – to Jamaica.  One of Miranda’s two (adult) sisters has travelled out to Jamaica with them. 

They flew out of the country on the very day that the Local Authority was due to remove Miranda from the family home in England, following a court order authorising this for the purposes of carrying out assessments.  

Her mother has taken Miranda away “seemingly to evade the involvement of social care professionals”, says the Official Solicitor.  

According to Miranda’s father, who’s still living in the family home along with Miranda’s other sister, the family has been “harassed by our neighbours, the police and social services in a way that we as a family consider to be racially motivated, hostile and distressing”.  He says that the experience has been “traumatic and destabilising” for Miranda, who has autism, a learning disability and is largely non-verbal.  

Miranda has lived with her parents all her life and her father says they “have a good ability to communicate with her and manage her behaviours triggered by her autism”.  He says Miranda is being “well looked after” and is “safe and well” in Jamaica, “enjoying the sun and being around family”.  He has not provided the professionals (or the court) with an address in Jamaica where Miranda is currently living, and says that he doesn’t have his wife’s consent to share her telephone number.

Miranda’s father hopes that his wife and daughters will return to the UK soon, but they won’t (he says) be returning to the family home.  He’s placed their current property on the market and hopes to buy another house in London enabling the family to start a new working relationship with another local authority, in an area where there is a more diverse community.  

He doesn’t think it’s in Miranda’s best interests to return to the current home, or for Miranda to be assessed by social workers within their current local authority, since that relationship has broken down.  

The father says that, if necessary, they will rent a property in London, or stay temporarily in a hotel while they sell their current home and find another – and an assessment could take place at the temporary accommodation.  He says that the plan is for Miranda and her mother to return to the UK by the end of July 2023.

The case has been heard several times in the regional court by HHJ Hodges. That judge recently transferred the case to a Tier 3 judge (the most senior in the Court of Protection). 

This was the first hearing in the case (COP 14027239) that I’ve observed. It was before Sir Jonathan Cohen on 8^th June 2023.  It was listed to consider the issue of Miranda’s return to the UK and what steps are necessary now. 

The parties

• The applicant Local Authority (Essex County Council) was represented by Rachel Sullivan of 39 Essex Chambers.  

• Miranda, the protected party at the centre of the case, is the first respondent, represented via her litigation friend, the Official Solicitor, by Varsha Jagadesham of No. 5 Chambers.

• Miranda’s mother is the second respondent. She was not in court and was not represented.

• Miranda’s father is the third respondent.  He was represented by Rose Harvey-Sullivan of 7BR.

The hearing was held via video-link (MS Teams).  

I was sent a Transparency Order shortly after the hearing, and it was in the “standard” format. This means that I am not allowed to publish any information that identifies, or is likely to identify, that Miranda is the subject of these proceedings, or anything likely to identify her parents or any other members of the family, where any of them lives, or is being cared for, or their contact details.

Background

The Local Authority entirely rejects any allegations that it has harassed the family or treated them differently on the basis of race or any other protected characteristic.  The Local Authority has been concerned, it says, only to ensure that Miranda’s needs can be assessed (in accordance with the Care Act 2014), so that appropriate care and support can be provided for her.  They want Miranda to be returned to England as soon as possible for assessment.

Until recently, Miranda was living at home in England, but there had been a long gap without her having been seen by professionals.  Two school placements at Special Educational Needs schools broke down in 2013 and 2014 due to “behaviours that challenge” and the family had decided on home education.  The most recent assessment seems to have been in 2016. It recorded that Miranda had a diagnosis of autism, ADHD and behavioural difficulties with limited communication skills.  The parents seem not to have engaged with professionals since then. They’ve not answered the door, the letterbox is sealed up, and there’s a notice telling professionals not to trespass on the property.  Recent visits between September and the end of December last year, were unsuccessful in that either professionals couldn’t gain access or – when accompanied by the police who used their powers to enter the property – Miranda was asleep and could not be roused.

On 11 January 2023 the court made an order that Miranda should not be moved from the family home without giving the Local Authority and the Official Solicitor a week’s notice.

On 3 February 2023, the court made an order authorising the Local Authority to remove Miranda from the family home for the purposes of carrying out various assessments.  

But when they arrived a few days later, she wasn’t there – and they learned that Miranda, her sister and her mother had left the country on a flight to Jamaica earlier the same day.

The Local Authority maintains – and nobody disagrees-  that as Miranda is “habitually resident” in England, the court retains jurisdictional authority, even though she is currently out of the country and living under a different jurisdiction (Re O [2013] EWHC 3932).

The hearing

The key difference between the parties is whether there should be a court order (with a penal notice) right now compelling her mother to return Miranda to England (which is that the Official Solicitor wants) or whether, as the Local Authority would prefer, the court waits for a couple of weeks to give the family a final chance to cooperate (and there’s no penal notice).

The parties agree that if the mother returns Miranda to the family home, she will not be arrested for breaching court orders, and Miranda will not be taken into care for assessment, but will be assessed in the family home.  

At the beginning of the hearing, the judge asked “What is the position with the mother? Has she been sent a link to this hearing?”.  Counsel for the applicant Local Authority said she wasn’t sure, and the judge said sternly, “Well, you need to tell me”. (As usual, since we are not allowed to audio-record court hearings, my quotations from the hearing are as accurate as they can be, based on contemporaneous touch-typed notes, but are unlikely to be 100% verbatim.)

It turned out that counsel for Miranda’s father had some information about that.  “I’ve sent the hearing link to my client, and invited him to forward it to [Miranda’s mother] so it has been made available.  But my understanding is that she is not able to join due to the time difference. It’s 4.30 in the morning where she is, in Jamaica.  If hearings could be in the afternoon in future, that would be helpful.”

The judge didn’t seem very impressed by this explanation as to why the mother wasn’t present.  He referred to “the mother’s statement” which “doesn’t give one much cause for encouragement”.  What the judge later called, with some exasperation “her in-inverted-commas application” for the case to be dismissed was adjourned in the circumstances of her non-attendance, with the opportunity to address it at the next hearing. It was, the judge said  “totally without merit”.

The Local Authority

The Local Authority wants the court to make directions requiring Miranda’s parents to tell them when Miranda will return, and where she’ll live, and to authorise an assessment of her.  I think they were not yet asking for a court order mandating Miranda’s return.  Counsel for the Local Authority said: “Returning her through coercive court orders is likely to take many months.  If it is possible for her to return via a process of cooperation with the family, the Local Authority is keen to do that”.  

The judge asked: ‘Has the statement of the mother from last night caused the Local Authority to revise its position?”

Counsel for the local authority replied “On Friday, our understanding was that she intended to return, but the statement she’s filed doesn’t seem wholly consistent – or indeed, at all consistent – with that.  However, we would like to give the family one last chance, as it were, to cooperate”.   I think they were suggesting a 2-week period during which the family should have the opportunity to cooperate by returning Miranda to England without actually yet being ordered to do so.  This contrasts, I understand, with the position of the Official Solicitor which is that there should be no further delay in ordering Miranda’s return.

It seems to be agreed the relationship between the Local Authority and the family has broken down, and that Miranda’s assessment will need to be carried out by an independent social worker (ISW) – so the Local Authority wants the court to authorise the appointment of an ISW.  The ISW will be asked to consider Miranda’s capacity for decision-making about residence, care and litigation, her support needs, how any identified needs could best be met, and whether they recommend referral to other services (e.g. speech and language therapy, occupational therapy). The parties would need to identify a suitable expert, and agree a letter of instruction: they want the judge to approve the instruction of the expert “on the papers” (i.e. without coming back to court in person) once they’ve done that.

The judge expressed some concern that the Local Authority was “asking for an elongated process”, to which counsel for the Local Authority replied: “The Local Authority’s concern is that having finally got some cooperation with the family, they don’t want to jeopardise the relationship with the family.  The orders are perceived by the family as quite draconian. The Local Authority would prefer a cooperative approach – and then if that doesn’t work, only then adopt the approach of the Official Solicitor.”

Counsel for Miranda via the Official Solicitor

The Official Solicitor invited the court to make orders that the mother should return Miranda to England by 7^th July 2023, with a penal notice attached to that order –  meaning that she’d be in contempt of court, and liable for a prison sentence, if she did not comply.  The Official Solicitor also wanted an order that Miranda must live in the family home for the time being – and does not believe that it can be in her interest to live in temporary accommodation.  

The OS is also asking for permission to require the Civil Aviation Authority to inform the Local Authority about whether Miranda and her mother travel on the flight allegedly booked for them, and for permission to the UK Border Force to inform the Local Authority, the local police force and the airport police when they enter the country.  They want her passport confiscated and an order that she’s not to be moved from the home (or the country) again.

The OS wants permission to instruct a legal expert about the legal framework in Jamaica for the protection of vulnerable individuals, and/or individuals who lack capacity to make decisions, and whether or how the Jamaican courts can assist, plus permission for the Local Authority to liaise with the British High Commission in Jamaica regarding a welfare check being carried out on Miranda immediately by an international social worker.

Finally, the OS wants the court to order Miranda’s father – with a penal notice attached – to provide the mother’s telephone number, the name of the place where he believes she and Miranda are staying, contact details for the mother’s brothers (believed to live in London) and contact details for her relatives who live in Jamaica.

OS:  We do seek orders today for Miranda’s return to the jurisdiction. It’s over four months now since she was taken out of the jurisdiction. In that time there have been steps taken between the Local Authority, the OS, and the parents, seeking a compromise whereby Miranda could be returned.  We are not much further on. Following HHJ Hodge’s order, [the father] did provide a statement-

Judge: Devoid of any useful information.

OS: There is no witness statement from [the mother] in the terms the court directed.  Instead, we have an application from her which has very little to say – in fact, has nothing to say – about a return to this jurisdiction.

Judge: It’s an unissued application to set aside the court’s order on the basis that it is void, in breach of natural justice and, uhm…. I have to say with reference to Latin legal maxims and the Magna Carta and historical cases and the rights of indigenous peoples and it doesn’t begin to address any of the matters that arise in this case.

OS: So, we are seeing a continuing lack of engagement, and potentially an attempt to evade the orders of this court.  

Counsel for Miranda’s father

Counsel for Miranda’s father seemed taken aback by the ‘hard line’ approach of the Official Solicitor, saying that the father had understood that everyone would be working together to encourage collegiality and he was “very disappointed to receive the U-turn position from the Official Solicitor” which had apparently arrived via their Position Statement after 4pm the day before.

Counsel pointed out that – although she didn’t represent the mother –  the mother was a litigant-in-person, in a different time zone and that it would “improper” and “unfair” to make the orders requested by the OS against an unrepresented party.

The judge didn’t seem very sympathetic to this line of argument.  “It seems to me pretty obvious that an order needs to be made for Miranda’s return”. 

Judge: Are you opposing an order that they should return.

Counsel: My client’s position is that he is expecting his wife and daughters to return in July.

Judge:  Answer my question please.

Counsel:  My client is not here.  We oppose any order with a penal notice. It’s too heavy-handed.  If an order were to be made, it should be for Miranda’s return by the end of July, as discussed at the RTM. I am aware that I am avoiding the court’s direct question, but I don’t have specific instructions on that point.  In terms of the other orders, we request removal of any reference to my client being required to provide details of where [the mother] is living or the contact details of [the mother’s] relatives. This would be an order that drives a wedge between husband and wife. It is heavy-handed and short-sighted.

Judge: But he’s the father of a daughter who is not getting the help she ought to be receiving.

Counsel: On a practical level, orders of that nature will not yield results. There needs to be a realistic pragmatism applied by the court and a move towards trying to remove as much draconian language as we can.  

Counsel also suggested the need for “carrot” as well as “stick” – recommending, for example,  that the mother should be reassured that “nobody is seeking an arrest of the mother and the family will not be separated on her return”. 

The judge’s decisions

Judge:  I don’t want to get too far into the detail of the order. Dealing piecemeal with detail is not appropriate at the moment. But I am quite clear that I need to make an order for the return of Miranda to England and Wales, and I do so of course against the background that Miranda has had a very long involvement with social care professionals in order to meet her very considerable needs, which are a combination of autism, ADHD and learning difficulties.  It is clear from the history that the parental engagement in the care that has been provided has not always been consistent.  I cannot overlook that at the time the mother removed Miranda to Jamaica on 6^th February, there was an order specifically requiring that Miranda was not to be removed from her home, and that order was plainly breached.  And here we are now, four months later, and I agree with the Official Solicitor there has been minimal progress in planning for Miranda’s return to England.  And the mother’s statement, which was meant to deal with her plans for Miranda’s return, and Miranda’s current living conditions, is conspicuously devoid of any such content at all.  It is a long exegesis on the rights of indigenous peoples, replete with refs to Magna Carta and Latin legal maxims, and devoid of anything about the young adult with whom the court is concerned.  The father’s statement is more of a hand-wringing nature. It tells me next to nothing about Miranda’s circumstances.  Only that she is somewhere in Jamaica with her mother.  After this long period of time, and what seems to me to be only superficial cooperation between the parents and the Local Authority, it is now time to make an order for Miranda’s return, and that is the order I intend to make.  I do not ignore the point made by Ms Harvey-Sullivan (counsel for the father) that the parents need to be given something of a carrot. That seems to be provided in two ways.  First by a recital that, provided they engage with the assessment of Miranda by the independent social worker,  no party is seeking at the current time for Miranda to be removed from family care.  Secondly, I think it is proper to say that the mother should not be arrested upon her return to England, but I suspect there may be a proviso that she lodge her passport or hand it in to the tipstaff or immigration authorities on arrival – because we cannot have a repeat of this situation again. These are the steps it seems to me need to be taken so that the assessment can begin to take place.  Against that backdrop, I need to look at the terms of the order.  It is right and proper for [the father], who is in this jurisdiction, to be ordered to provide a document with the address where his daughter, with whom the court is so concerned, is living in Jamaica, and with whom, and to provide details with appropriate documentary support of the sale of the family home and its timetable. I am not concerned with what its price is, but I want to know for how long the family home is going to be maintained.  And I suppose I will add, confirmation of the precise date when Miranda will return to England.

As the judge went through the order, counsel for the father pointed out  (“respectfully”) some of the “blunt language” that she said was “spooking” the mother and that the mother was experiencing as a “threat”.  Mostly the judge accepted the suggested changes – including adding, at the end of the recitals, that no party was seeking for the mother to be arrested on her return.  I think he also did not make any penal notices: “I can’t imagine the existence of a penal notice will make one of them say, ‘oh my goodness me, I’m going to have to completely change my behaviour’!”

He did decide, though, that Miranda should live in the family home until it’s sold because temporary accommodation was not likely to be in her best interests.

I haven’t seen the final order and I’m not sure which of the other proposed directions were included in it.  I think there was some provision for removing the mother’s and Miranda’s passport.

The judge said the next hearing would be an in-person hearing, and that the parents must attend in person.

Reflections

Given how often I hear family members reflecting on the possibility of leaving the country to evade the rulings of the Court of Protection, I was curious to see what other cases I could find involving moving the protected party (P) across international boundaries.  

The Court of Protection has jurisdiction to keep  people in (or return people to) England and Wales if that’s where the person is “habitually resident” (which can be different from where they own a house or where they are domiciled).  In Re Clarke [2016] EWHC 2151, Anna Clarke was abroad with her son. Two of Mrs Clarke’s other children believed their mother should be cared for in England, and that the other son had “hijacked” her.  They applied to court seeking orders that she should be returned from Spain.  Although she had a house in Blackpool, she’d spent a lot of time abroad with the other son over the last few years  – for some months in Thailand, and often for long periods in Spain.  As a result, the court wasn’t sure whether or not she was “habitually resident” in England and Wales.  But the judge found that even if she wasn’t he could invoke the “inherent jurisdiction” of the High Court, which has the ability to make orders for the protection of vulnerable individuals on the basis of their British citizenship, even if they’re not “habitually resident” in England or Wales.  (The case law the judge cited to support this was  Al-Jeffery [2016] EWHC 2151 (Fam)).  

The Open Justice Court of Protection Project covered a different family dispute – between two daughters – about whether the protected party should live in England or overseas with the other daughter (see A mother abroad and a family dispute Part 1 and A mother abroad and a family dispute – Part 2). In that case, the mother was returned fairly promptly.

Sometimes the court is involved in making decisions for people who are “habitually resident” in England and Wales but are not British. In one recent case, the protected party was an Irish National (Can P return to Ireland?) and in another she was a Pakistani national (“At loggerheads”).

It seems the court is most likely to authorise a protected party to live in another country if the protected party herself wants to do this.  We’ve blogged several  cases where the protected party expressed the strong wish to live in another country (e.g. Should P go to live with her family in her country of birth?).  The court is concerned to check that those caring for the protected party are able to demonstrate that the protected party’s health will not be adversely affected by travel and that there are plans in place to ensure that a they receive any necessary care, but is likely under these circumstances to authorise the move (Re UR: Derby City Council v NHS Derby and Derbyshire CCG [2021] EWCOP 10; blogged as Returning P to her family abroad during a global pandemic).  

Sometimes the court makes orders that a protected party is not to travel abroad precisely because the reason for the travel is seen as harming them.  For example, there are often court orders that P may not be taken abroad due to concerns about forced marriage (e.g. Forced Marriage Protection Order). In another case, the judge ruled that it was not in P’s best interests to continue to receive life-sustaining treatment (his wife agreed).   So when his birth family, who lived in Poland, lobbied the Polish government who then offered to pay for an air ambulance to take P back to Poland where he would receive free life-sustaining treatment, the court declined the offer (Re RS [2020] EWCOP 69).

It doesn’t seem to be very common for family members to flout court orders by taking their relatives abroad, or not to return them to England when ordered to do so.  One such case concerned Teresa Kirk, the 71-year-old grandmother “jailed by a secret court” (as the Daily Mail put it) because she refused to comply with the court’s order to return her elderly brother, Manuel Martins (MM), who had dementia . to England from a care home in Portugal in which she had placed him in August 2015.  She was given a six-month prison sentence  for contempt of court.  I think she served about two months of it, before being freed on appeal. 

The Court of Appeal in Teresa Kirk’s case raised a question mark about  whether it can ever be right to make an order in a person’s best interests which put someone genuinely concerned with that person’s welfare, at risk of a prison sentence.  As Lord Justice McFarlane put it when discussing permission to appeal the judgment against Teresa Kirk: 

“In short terms, that question might be ‘is the move to Devon still in MM’s best interests if it may only be achieved by sending to prison someone whose interests he could be expected to have at heart, had he the capacity?”.  (There’s an excellent and detailed account of what happened in Teresa Kirk’s case, written by lawyer Barbara Rich, for the Transparency Project here: ‘Teresa Kirk and the Court of Protection –  the end of an ‘astonishing story’.) 

I’ve seen for myself, since I started observing committal hearings, how very reluctant the Court of Protection is to imprison family members when the  family doesn’t agree with the best interests decisions made by the court and flouts the court’s orders as a consequence.

The next hearing (probably in person in the Royal Courts of Justice) should be before the end of July 2023.  We’ll add it to our “Featured Hearings” when we know about it.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 450 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia