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Home > Judgments > 2010 archive

PM v KH & Another [2010] EWHC 870

Proceedings under the inherent jurisdiction in respect of young adult lacking capacity.

The judgment of Munby LJ details exhaustively the convoluted history of this case, the extensive litigation and the numerous orders made by Roderic Wood J and Munby LJ, both before and after his elevation to the Court of Appeal.

HM is now 21 years old. Her mother, KH, began divorce proceedings against her father, PM, in 1996. Since then there had been almost incessant litigation, in the courts of Guernsey, England and Wales, and Israel. At various stages PM has thwarted residence orders and ultimately removed HM to Israel and refused to return her. She eventually returned with KH.

The judgment of Munby LJ forcefully emphasises the powers of the court when exercising its inherent jurisdiction in the protection of a vulnerable adult.

The orders made by the court in the course of the litigation fall into six distinct categories: i) various injunctive orders directed to PM, including a collection order; ii) various orders inviting the assistance of both domestic and foreign public (including judicial) authorities; iii) various orders seeking information from various individuals, friends or associates of PM 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; iv)  various 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 PM's assets which has been renewed from time to time; v) various orders permitting frozen funds to be used to fund PM and HM's living expenses and to fund not merely PM's legal costs in this country and in Israel but also KH's costs both here and there and the costs of HM's guardian in Israel. Linked to these were orders directing the transfer of monies 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 vi) various orders designed to prevent PM knowing what was going on, though at the same time permitting appropriate disclosure to others.

The purpose of the orders was summarised by Munby J as follows: i) to ensure the return of HM to the jurisdiction and her safety here once repatriated; ii) to confirm that PM and HM were in fact in Israel (and not still in this country) and to locate precisely where they were, whilst being in a position to catch them if they attempted a clandestine re-entry to the jurisdiction; iii) to make clear to PM that "the court is not going to stand idly by, allowing the decisions it has taken … in HM's best interests to be thwarted"; iv) by freezing his funds, to deny PM access to the wherewithal to move himself and HM further away, or to relocate himself permanently out of the jurisdiction, whilst at the same time putting pressure on him to comply with the court's orders; v) by permitting the frozen funds to be utilised for this purpose, to enable the proceedings to be brought in Israel which had become essential if there was to be any chance of securing HM's repatriation to this country:

Munby LJ explains the power of the court to order third parties to provide information. In addition to the statutory jurisdiction (eg under section 33 of the Family Law Act 1986 or section 50 of the Children Act 1989), the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child. Such orders are almost invariably made, and oral evidence taken, at hearings held in private from which the abducting parent's representatives are excluded and of which, typically, they will be wholly unaware, the applications being made ex parte and without notice.

Legal professional privilege is no answer to such an order: Burton v Earl of Darnley (1869) LR 8 Eq 576n, Ramsbotham v Senior (1869) LR 8 Eq 575. The court's powers in this kind of case – where it is seeking to locate a missing child – are not subject to the limiting principles of the Norwich Pharmacal jurisdiction: see Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. In aid of this jurisdiction the court can make a variety of orders directed to the Tipstaff, including, in addition to location, collection and passport orders, an order authorising the Tipstaff to enter private residential property, if need be using force to open doors, with a view to searching for, removing and taking into custody anything which there is reason to believe may contain information throwing light on the missing child's whereabouts: see Re S (Ex Parte Orders) [2001] 1 FLR 308 at page 320.

The other aspect of the matter which requires elaboration relates to the court's powers to seize or block an abducting parent's (access to) funds. The court can make a freezing order to restrain the abducting parent's recourse to his assets and, where the parent has acted in breach of the court's order or breach of undertaking and is thus in contempt, the court can also make a sequestration order: see Richardson v Richardson [1989] Fam 95 and Mir v Mir [1992] Fam 79. Moreover, the court has power to direct that the sequestered funds be used to fund litigation brought in a foreign court with a view to securing the return to this jurisdiction of the abducted child: see Richardson v Richardson [1989] Fam 95 at 102-103.

In respect of an adult lacking capacity, Munby LJ cites his judgment in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [84]:

"the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions. The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court – for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court – has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult. But this apart, the court's powers to make orders under the inherent jurisdiction in relation to adults would seem to be as wide as its powers when exercising its inherent parens patriae jurisdiction in relation to children. Just as there are, in theory, no limits to the court's powers when exercising the wardship jurisdiction I suspect that there are, in theory, few if any limits to the court's powers when exercising the inherent jurisdiction in relation to adults."


_________________________

Case No: FD06P02361
Neutral Citation Number: [2010] EWHC 870 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30 April 2010

Before :
LORD JUSTICE MUNBY
(sitting as a Judge of the Family Division)
- - - - - - - - - - - - - - - - - - - - -

Between :
In the Matter of HM (An Adult)

PM (Claimant)

- and - 

(1) KH
(2) HM (by her litigation friend the Official Solicitor)
(Defendants)

- and –

THE STATES OF GUERNSEY 
(Interested Party)


- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Ms Lisa Giovanetti (instructed by Bindmans) for the Second Defendant

Ms Fareha Choudhury (on 5 February 2010 Ms Lisa Evans) (instructed by the Attorney General's Office, States of Guernsey) for the Interested Party

The First Defendant (mother) appeared in person

The Claimant (father) was neither present nor represented

Hearing dates: 2, 6 and 12 November 2009, 17 December 2009, 5 February 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Munby :
1. These are proceedings under the inherent jurisdiction in respect of HM, a young woman who, it is common ground, unhappily lacks capacity.

2. HM was born on 22 December 1988, her older sister JM having been born in February 1987. Their parents had married in January 1983 but on 1 October 1996 their mother, KH, filed a petition for divorce from their father, PM. Since then there has been almost incessant litigation, both in the courts of Guernsey and in the English courts. The depressing details, which I need not rehearse, are summarised in a chronology prepared for the present hearing.

3. On 21 November 2008, following a five day hearing, Roderic Wood J delivered a written judgment: PM v KH and others [2008] EWHC 2824 (Fam). Having read and heard a mass of evidence, including expert evidence from Dr Nicholas Land, a Consultant Psychiatrist in Learning Disabilities, and from Ms Susan Walshe, a Social Work expert, both of whom had been instructed by HM's litigation friend, the Official Solicitor, Roderic Wood J concluded, and the same day made an order containing declarations to the effect, that:

i) it was not in HM's best interests to reside with PM;

ii) it was in HM's best interests to reside and be cared for at X;

iii) it was in HM's best interests to have contact with PM and KH.

4. That order was intended by Roderic Wood J to be a final order. Unhappily, however, the matter had to come back to court in circumstances where, as I subsequently put it (Re HM, PM v KH and others [2009] EWHC 2685 (Fam) at para [13]), "whether intentionally or otherwise, PM destroyed – in outcome if not in intention sabotaged – HM's placement at [X]". In consequence, notice was given by X to terminate the placement with effect from 18 July 2009.

5. The matter came before Roderic Wood J on 12 June 2009 and again on 24 June 2009. On the latter occasion he adjourned the matter to be heard by me in August 2009 for resolution of (a) the future placement of HM, (b) future contact between HM and each of her parents and (c) what framework if any needed to be put in place in relation to any new placement.

6. Roderic Wood J's order of 24 June 2009 provided for varied contact arrangements during the period until 12 September 2009 (when, it was contemplated, HM's new college term might begin). It also contained an undertaking to the court by PM (signed by him) promising that:

"if I take HM out of the jurisdiction of England and Wales during any period of contact I have with her, I will return HM to the jurisdiction of England and Wales on or before the end of that period of contact."

7. The hearing before me started on 25 August 2009 and lasted for four days. I heard further expert evidence. At the end of the hearing on 28 August 2009 I adjourned, indicating that I would give my decision as soon as possible, once I had received PM's further submissions – he had appeared before me in person, assisted by a McKenzie friend. I said that my reasons would follow in due course.

8. On 6 September 2009 I communicated my decision to the parties, sending them at the same time a draft of the order I proposed to make and inviting them to send me as soon as possible any drafting amendments they might have. I made it clear that I was inviting no more than suggestions or comments "on minor points of detail."

9. So far as is material for present purposes my conclusion was, and the draft order  contained declarations to the effect, that:

i) it was not in HM's best interests to reside with either PM or KH;

ii) it was in HM's best interests to have contact with PM and KH in accordance with the general principles of contact set out in the Fourth Schedule to the order and the contact arrangements set out in the Fifth Schedule;

iii) it was in HM's best interests to reside and be cared for at a new placement, Y.

10. It will be noted that, in common with Roderic Wood J, I concluded that it was not in HM's best interests to reside with PM. Indeed, it is the fact that since the proceedings relating to HM began in 1996 no court, either in Guernsey or in this jurisdiction, has ever found it to be in HM's best interests to reside with PM. 

11. Paragraph 4 of the Fifth Schedule to the draft order was in the following terms:

"The specific contact arrangements should be discussed between PM and KH, each proposal by either parent being copied at the same time to the advocate and the care co-ordinator.  In the event that PM and KH are able to agree what they consider the contact arrangements should be and if HM's advocate and the care co-ordinator are content that the proposals accord with HM's best interests, then those shall be the contact arrangements for the relevant period. In the event that PM and KH cannot agree, or if HM's advocate or the care co-ordinator are concerned that what is proposed by way of contact is not in HM's best interests, the care co-ordinator will make the decision."

12. Paragraph 9 of the Fifth Schedule, so far as material for present purposes, was in the following terms:

"Before taking HM on holiday, PM and KH shall both inform the care co-ordinator (but pending appointment Guernsey HSSD) of their itinerary and contact numbers during the holiday and the care co-ordinator shall pass such information to the other parent."

13. The process of trying to reach agreement on the drafting of the order became protracted as a result of PM's reactions to my decision. His immediate reaction, in an email on 13 September 2009 asserting that the recitals in the draft order were "not an honest reflection of what was stated in court", was to seek permission to appeal. He then sought in subsequent emails in effect to persuade me to re-open my decision.

14. On 13 October 2009 the Official Solicitor's solicitors wrote to the court:

"The parents have made practical arrangements for contact until the date proposed by [Y] for HM to come to [Y], which is 19th October 2009. HM has been with her mother … but moved to her father's home … on 8th October 2009 and the provisional plan is that HM's father will bring her [to Y] to see the placement in the week of 12th October and he will bring her [to Y] on 19th October to settle in."

PM's response, in an email later the same day, was that:

"Nothing has been 'agreed' and without consultation and discussion nothing is capable of being agreed."

15. On 23 October 2009 the Official Solicitor's solicitors informed me that PM had not taken HM to Y on either 12 or 19 October and that HM remained with him.

16. On 27 October 2009 I sent the parties the final version of the order as it was to be sealed, identifying the various (essentially minor) amendments I had made to the draft sent to the parties on 6 September 2009, those amendments "reflecting the fact that, as PM put it in his email of 12 October 2009, "Nothing has been 'agreed'."" One of the amendments was the omission of paragraph 2 from the Fifth Schedule, with the consequence that paragraphs 4 and 9 in the draft (see paragraphs [11]-[12] above) are now paragraphs 3 and 8 in the final sealed order. I refused PM's application for permission to appeal but extended his time for applying to the Court of Appeal for permission until 5 November 2009. PM has not, in the event, sought to renew his application to the Court of Appeal.

17. The following day, 28 October 2009, I sent the parties the draft of my judgment: Re HM, PM v KH and others [2009] EWHC 2685 (Fam). (It was sent to the parties in its final approved form on 2 November 2009.) The same day (28 October 2009) Mr Allen of Guernsey HSSD, the acting care coordinator, informed PM that he should take HM to Y on 30 October 2009 prior to her having contact with KH, thus in effect informing him that the period of contact between PM and HM that was then taking place should end on 30 October 2009.

18. PM's reaction to all this was to remove HM to Israel, a fact first communicated by him in an email he sent to JM on 31 October 2009 in which he described my judgment (which he had obviously received and read) as "a very distasteful and indeed disgraceful attempt to justify his dishonest order."

19. I need not take up time reciting the subsequent correspondence. It suffices to quote two emails. The first, dated 7 November 2009, was sent by PM to KH. It includes the following two notable passages (emphasis in original):

"You 'implore me to reconsider and bring [HM] home' – I take it by that you mean home to [Y] – No, never! …

One last point, [KH]. I am offering, subject to absolute, watertight guarantees from the relevant parties / governments / courts, to bring [HM] to Guernsey for 1 to 2 weeks over the period covering her 21st birthday, which I believe would be in [HM's] best interests and which she would most certainly enjoy.

The ball is in your court in respect of this offer … "

20. The second, dated 23 November 2009 and addressed to me and to the Lieutenant Bailiff of the Royal Court of Guernsey (as to whom see further below), reads in material part as follows:

"Subject: YOUR OPPORTUNITY TO BE 'A MENSCH'

… So what I am saying (again) to you both is that your actions in 'freezing' assets that you thought belonged to me is wrong; and the only persons who will suffer are the girls.

[HM] and I are fine; we are well; we are managing despite the attempt at 'inconveniencing' us and to put it bluntly, will not be blackmailed – the effect of which would be like selling out on [HM's] future for money or assets. I have more respect for her than that. Do you?

So now it's time to be A Mensch –   

Mensch (Yiddish: ????? mentsh, German: Mensch, for human being) means "a person of integrity and honor". The opposite of a Mensch is an Unmensch (meaning: an utterly cruel or evil person). According to Leo Rosten, the Yiddish maven and author of The Joys of Yiddish, mensch is "someone to admire and emulate, someone of noble character. The key to being "a real mensch" is nothing less than character, rectitude, dignity, a sense of what is right, responsible, decorous".

In Yiddish (from which the word has migrated into American English), mensch roughly means "a good person." A "mensch" is a particularly good person, like "a stand-up guy," a person with the qualities one would hope for in a dear friend or trusted colleague.
The opposite of a Mensch is an Unmensch (meaning: an utterly cruel or evil person)

The Choice is yours

And by the way, as you all seem determined NOT to consult or discuss anything with me, I can tell you that if you want any chance of [HM] and me coming back to the UK, you will need an Order that includes the following:-

1  [HM] to reside with me;

2  [HM] to be funded in her welfare, medical and educational needs by Guernsey;

3  [HM] to attend a day college placement at a suitable college, such as [BC] or [ST];

4  No action or sanctions will be taken against me and all 'inconveniences' removed."

21. This missive was purportedly signed by both PM and HM, though quite plainly HM could have no understanding of it.

22. Pausing at this point to take stock:

i) PM's removal of HM to Israel was a blatant defiance of my decision and of the consequential order I had made that HM was to move to Y – a move, which as PM was well aware, had originally been contemplated as taking place in September 2009 and which by middle October 2009 was planned for 19 October 2009. His purpose in taking HM to Israel appears clearly enough from his own words in the two emails I have quoted: HM would "never" go to Y and she was to reside with him. So he set out to sabotage the placement at Y just as he had earlier sabotaged the placement at X.

ii) More specifically, PM's removal of HM to Israel without first notifying Mr Allen was a breach of paragraph 8 of the Fifth Schedule to my order.

iii) PM's failure to return HM after contact no later than 30 October 2009 was, given Mr Allen's decision in accordance with paragraph 3 of the Fifth Schedule, a breach of the undertaking that PM had given Roderic Wood J on 24 June 2009 as well as a breach of my order.

iv) Given these matters, and in circumstances where HM lacked the capacity to consent to what he was doing, PM's actions in removing HM from the jurisdiction were wrongful and unlawful as well as being quite plainly contrary to HM's best interests.

23. Following PM's abduction of HM to Israel – for that is what it was – the matter has appropriately been brought back to court before me on a number of occasions. Hearings took place on 2, 6 and 12 November 2009, on 17 December 2009 and on 5 February 2010. Notice of these hearings was given to all the parties, other than PM, and all of them, with the exception of PM, were either present or represented at all the hearings. Following these hearings I have made various orders. Other orders have been made by me from time to time on paper application without the need for an oral hearing.

24. I can conveniently tabulate these orders as follows:

i) Hearing on 2 November 2009: Following the hearing on 2 November 2009 I made nine orders: two were injunctions directed at PM, one ordering him forthwith upon service to deliver HM into the care of KH in order to facilitate HM's return to this jurisdiction,  the other containing a raft of injunctive orders designed to protect HM from any further abduction by PM following her return to this jurisdiction; the third was an order, in a form modelled on that first used by Singer J in Re KR (Abduction: Forcible Removal by Parents) [1999] 2 FLR 542, inviting the cooperation in securing HM's return to the jurisdiction of the police authorities in this country and "respectfully request[ing] and invit[ing] all judicial and administrative bodies and police authorities of the State of Israel to render assistance in establishing the whereabouts of [HM] and facilitating her return to the jurisdiction"; the other six were orders directed to ensuring the attendance of three of PM's friends or associates at court on 6 November 2009 to give evidence as to his whereabouts. 

ii) Hearing on 6 November 2009: Following the next hearing, on 6 November 2009, I made a further fourteen orders: the first was an order respectfully inviting the assistance of the Royal Court of Guernsey in establishing HM's whereabouts and facilitating her return to this jurisdiction; six orders were directed to ensuring the attendance at court on 12 November 2009 of the three individuals it had previously been intended to have at court on 6 November 2009;  the other seven orders were directed to obtaining disclosure of information  from a bank (to identify PM's bank accounts), from two travel agents (to provide information about tickets and flights), from PM's email service provider, from X (this order also prohibiting X from making any payments to PM pursuant to a consent court order entered into between them), and from PM's landline and mobile telephone service providers.

iii) Hearing on 12 November 2009: The next hearing was on 12 November 2009, when I heard oral evidence from each of the three individuals who had been summoned to appear. Each was examined in private, separately from the others, and was forbidden to disclose to anyone what had gone on. Following the hearing I made a further fourteen orders: one, freezing certain monies in DP's hands; three orders requiring the three witnesses to make immediate disclosure of any further communications they might receive from PM; an order permitting X to disclose the freezing order I had made following the hearing on 6 November 2009 to both PM (in part) and (in whole) to the Circuit Judge dealing with the proceedings between them; an order providing for the preparation at public expense of transcripts of the oral evidence I had heard on 12 November 2009; four orders directed to obtaining disclosure of information from two further friends or associates of PM, from the insurer of a property belonging to PM, and from another bank; an order discharging the order I had made directed to PM's email provider (it turned out that the order had been directed to the wrong company); an order appointing a named individual as HM's care coordinator with effect from 1 December 2009; an order freezing, until 17 December 2009, all PM's assets within the jurisdiction, including the monies held by DP, the monies payable by X, and the assets held in the name of various companies, but permitting the payment from a specified account of up to £250 per week to PM for his and HM's living expenses;  and an order requiring PM to make arrangements for HM's return to the jurisdiction forthwith upon service of the order upon him.

iv) Written application on 8 December 2009: Following a written application made to me by the Official Solicitor's solicitors with the agreement of KH and the States of Guernsey on 8 December 2009, I made three orders on 9 December 2009 for further disclosure by two banks  and by an airline.

v) Hearing on 17 December 2009: Following this hearing I made five orders: one order sought disclosure from the DVLA; two orders permitted KH to utilise funds in one of the blocked accounts (an account in the name of HM) for the purpose of discharging her costs of the litigation in this country since 30 October 2009 and of any future proceedings in Israel brought with a view to securing the return of HM to the jurisdiction, one of the orders authorising her to withdraw funds from the account and directing the bank to comply with any withdrawal request from her irrespective of any instructions to the contrary from or on behalf of PM; an order permitting the Official Solicitor to disclose certain documents to various relatives of PM; an order requiring PM to attend in person, bringing HM with him, any further hearing if given notice of the date of the hearing, and extending the freezing order until 31 January 2010;  an order directing DP to transfer the funds held by him to an account in the name of the Official Solicitor's solicitors (the purpose of this being to free DP from the operation of the previous freezing orders); and a collection order (in case PM tried to re-enter the jurisdiction clandestinely).

vi) Written application on 22 December 2009: Following a written application by the Official Solicitor's solicitors on 22 December 2009 I made an order on 22 December 2009 directing that no transcript of any of the previous or future hearings was to be provided to PM without the permission of the court.

vii) Written application on 27 January 2010: Following a written application by the Official Solicitor's solicitors on 27 January 2010 I made an order on 27 January 2010 further extending the freezing order until 14 March 2010.

viii) Hearing on 5 February 2010: The next hearing was on 5 February 2010. PM had been served with notice of the hearing but failed to appear, thereby further adding to his contempt (the order requiring him to attend having been endorsed with a penal notice).

25. It is convenient if I interpose at this point to describe events in Guernsey and Israel.

26. On 6 November 2009, as we have seen, I had made an order inviting the assistance of the Royal Court of Guernsey. On 9 November 2009 the Royal Court (Lieutenant Bailiff McMillen) made an order freezing PM's assets. On 11 November 2009 the Royal Court made an order which discharged its earlier order of 22 December 2006 (which had appointed PM and KH joint guardians of HM, KH being the primary decision maker on HM's behalf subject to a duty to consult with PM) and appointed KH her sole guardian with immediate effect. On 13 November 2009 the Royal Court made a further freezing order in wider terms, but authorising the payment of a maximum of £250 per week to PM for his and HM's living expenses.

27. Previously, on 2 November 2009, I had made an order inviting the assistance of the authorities in Israel. Despite the considerable assistance given to the Official Solicitor by various official agencies in Israel, and despite the various orders that I subsequently made, PM remained in Israel with HM and it was necessary to commence proceedings there. 

28. On 14 January 2010 the Official Solicitor's solicitors instructed lawyers in Israel to advise in relation to possible civil proceedings against PM in Israel. Their advice was contained in a 'Legal Advice/Opinion' dated 27 January 2010. At the hearing on 5 February 2010 it became apparent (see below) that the Crown Prosecution Service was not proposing to commence criminal proceedings against PM with a view to seeking his extradition from Israel, so in accordance with that advice KH began proceedings in Israel on 14 February 2010. An ex parte order was made the same day in the Family Court by Judge Paul Stark for HM to be placed in KH's care with the assistance of social services and the police. The order was successfully executed the following day. An inter partes hearing followed on 17 February 2010, directing a further hearing on 21 February 2010 and permitting PM to have supervised contact, but only if he handed over his passport. (KH was also required to surrender her and HM's passports to prevent them leaving Israel in the meantime.) On 21 February 2010 the Judge appointed a guardian for HM and directed a further hearing on 17 and 23 March 2010. On 24 March 2010 Judge Stark gave judgment, granting KH's application and directing that HM be returned to this country immediately. But he stayed his order until 29 March 2010 so as to give PM the opportunity to apply for a further stay from the District Court, to which PM had, as I understand it, an automatic right of appeal. On 29 March 2010 the District Court extended the stay until 7 April 2010. On the latter day the District Court made an order permitting KH to return with HM to this jurisdiction unless by 3pm the next day, 8 April 2010, the Supreme Court had made an order extending the stay. On 8 April 2010 the Supreme Court refused PM's application for a further stay and on the same day KH and HM returned to this country. I do not know whether PM has yet returned to this country.

29. I note in passing that the proceedings in the Family Court were concluded in only a little over five weeks and that the further proceedings before the District Court and the Supreme Court took only a little over two more weeks – an impressive achievement, if I may be permitted to say so, by the courts in Israel and one which I fear we would have difficulty emulating here even in a Hague Convention case.

30. I return to the hearing before me on 5 February 2010 and to the history of the subsequent litigation in this country:

i) Hearing on 5 February 2010: Following this hearing I made three further orders dated 5 February 2010: one was another order requesting assistance from the authorities in Israel and up-dating them on events since my earlier order of 2 November 2009; the second was an order for disclosure by another of PM's insurers; and the third was an order directing that there was no need to notify PM of certain expert evidence I had read during the hearing.

ii) Written application on 18 February 2010: Following a written application by the Official Solicitor's solicitors on 18 February 2010 incorporating informal applications made by both PM and KH on 17 February 2010, I made two orders on 18 February 2010: one provided for the funding of PM's legal representation in the Israeli proceedings; the other for the similar funding of KH. 

iii) Written applications on 5, 10 and 11 March 2010: Following further informal written applications made by both PM and KH and transmitted to me by the Official Solicitor's solicitors on 5, 10 and 11 March 2010 (PM and KH both, of course, being litigants in person), I made two orders: one, on 11 March 2010, extending, for both PM and KH, the funding orders I had made on 18 February 2010 to cover the further hearings in Israel and making provision for the same purpose for the funding of HM's guardian; the other, on 16 March 2009, further extending the freezing order until 14 April 2010.

iv) Written application on 16 March 2010: It will be recalled that on 13 November 2009 the Royal Court had made provision for the payment of a maximum of £250 per week to PM for his and HM's living expenses, this being mirrored in one of the orders I made following the hearing before me on 12 November 2009. That had been from a Guernsey account blocked by the freezing order made by the Royal Court on the same occasion. In due course – apparently on 21 December 2009 – the funds in that account had become exhausted and on 2 March 2010 PM contacted the Official Solicitor's solicitors seeking the release to him of £3,000. Following that, and further written applications by the Official Solicitor's solicitors on 5 March 2010 and 16 March 2010, resisting the payment of any capital sum or back payment but agreeing ongoing weekly payments of £250, I made an order dated 16 March 2010 providing for the payment, with effect from 5 March 2010, of that amount from the funds (previously held by DP) held by the Official Solicitor's solicitors pursuant to the order I had made in December 2009.

v) Written application on 26 March 2010: Following further informal written applications made by both PM and KH and transmitted to me by the Official Solicitor's solicitors on 26 March 2010, I made a further order on 26 March 2010, further extending, for both PM and KH, the funding orders I had made on 18 February 2010, this time to cover the hearing in Israel in the District Court.

vi) Written application on 6 April 2010: Following a further written application by the Official Solicitor's solicitors on 6 April 2010, again incorporating an informal application made by KH, I made a further order on 9 April 2010, further extending, for HM's guardian, the funding order I had made on 11 March 2010, this time to cover the hearing in Israel in the District Court.

31. As I have already mentioned, the return proceedings in Israel came to an end on 8 April 2010 and KH and HM returned to this country the same day. It is inevitable that there will have to be a further hearing in this country at which, no doubt, the court will be invited to make further orders. But it is convenient to break off at this point and for me to give a judgment explaining what has happened since I gave my previous judgment and, in particular, explaining why I was, as in my judgment I was, both entitled to make and justified in making all these various orders.

32. It can be seen that, ignoring for this purpose the order appointing a care coordinator for HM, these orders fell into six distinct categories:

i) First, there were the various injunctive orders directed to PM, including a collection order.

ii) Second, there were the various orders inviting the assistance of both domestic and foreign public (including judicial) authorities.

iii) Third, there were the various orders seeking information from various individuals, friends or associates of PM (three of whom who were also summoned 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 (X and DP) thought to be holding monies for PM.

iv) Fourth, there were various freezing orders, some directed to specific individuals in relation to specific assets held by them (X and DP), the other a general freezing order in respect of all PM's assets which has been renewed from time to time.

v) Fifth, there were the various orders permitting frozen funds to be used to fund PM and HM's living expenses and to fund not merely PM's legal costs in this country and in Israel but also KH's costs both here and there and the costs of HM's guardian in Israel. Linked to these were orders directing DP 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.

vi) Finally, there were the various orders designed to prevent PM knowing what was going on, though at the same time permitting appropriate disclosure to others.

33. The purpose of all these orders is in large measure self-evident but can be summarised as follows:

i) First, to ensure the return of HM to the jurisdiction and her safety here once repatriated.

ii) Second, to confirm that PM and HM were in fact in Israel (and not still in this country) and to locate precisely where they were, whilst being in a position to catch them if they attempted a clandestine re-entry to the jurisdiction.

iii) Third, to make clear to PM that, as I had put it in paragraph [117] of my previous judgment, "the court is not going to stand idly by, allowing the decisions it has taken … in HM's best interests to be thwarted" and that the court would indeed not hesitate to have recourse to the "wide variety of remedies open to it … to enforce its decision."

iv) Fourth, by freezing his funds, to deny PM access to the wherewithal to move himself and HM further away, or to relocate himself permanently out of the jurisdiction, whilst at the same time putting pressure on him ("coercing him") to comply with the court's orders: see Richardson v Richardson [1989] Fam 95 at pages 100, 101, citing Romilly v Romilly [1964] P 22 at page 23 and Con-Mech (Engineers) Ltd v Amalgamated Union of Engineering Workers (Engineering Section) (No 3) [1974] ICR 464 at page 467.

v) Fifth, by permitting the frozen funds to be utilised for this purpose, to enable the proceedings to be brought in Israel which had become essential if there was to be any chance of securing HM's repatriation to this country: cf Richardson v Richardson [1989] Fam 95.

34. None of these various orders would be thought surprising or unusual by those familiar with the practice of the Family Division when trying to locate and retrieve missing or abducted children. But before turning to consider the appropriateness of such orders being made in a case, such as this, where the abducted person is not a child but a vulnerable adult, there are two aspects of the jurisdiction which, however familiar to expert practitioners specialising in this field, merit some further elaboration.

35. The first relates to the power of the court to order third parties to provide information.

36. It has long been recognised that, quite apart from any statutory jurisdiction (for example under section 33 of the Family Law Act 1986 or section 50 of the Children Act 1989), the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child. Thus orders can be made against public authorities (for example, Her Majesty's Revenue and Customs, the Benefits Agency, the DVLA, local authorities or local education authorities, etc, etc) requiring them to search their records with a view to informing the court whether they have any record of the child or the child's parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers – the latter with a view to finding out whether the missing child has in fact left the jurisdiction and, if so, for what destination – and to relatives, friends and associates of the abducting parent. In appropriate cases, though this is usually confined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non-compliance, issuing a bench warrant for the arrest and compulsory production in court of the defaulter.

37. Since, for obvious reasons, it is important that the abducting parent is neither alerted to the investigations being carried out by the court nor informed of the identities of those from whom information is being sought nor informed of their answers, such orders are almost invariably made, and oral evidence taken, at hearings held in private from which the abducting parent's representatives are excluded and of which, typically, they will be wholly unaware, the applications being made ex parte and without notice. Moreover, and for the same reason, the orders themselves typically provide that they are not to be served on the abducting parent, just as they typically forbid those to whom the order is directed from informing the abducting parent of the existence of the order. Accordingly, and for reasons which in the nature of things are compelling, this small, discrete and necessarily discreet part of the Family Division's jurisdiction is, in distinction to the vast bulk of the Division's work, carried on not merely in private but typically in secret. The justification is that explained by Sir John Donaldson MR in R v Chief Registrar of Friendly Societies ex p New Cross Building Society [1984] QB 227 at 235, namely that unless it adopts this particular procedure in this particular type of case the court will be unable to achieve its paramount object of doing justice according to law; for abjuring secrecy in such circumstances is likely to lead, directly or indirectly, to a denial of justice and, not least, justice for the innocent child.  

38. There are three further aspects of this jurisdiction which it is convenient also to mention. First, that legal professional privilege is no answer to such an order: Burton v Earl of Darnley (1869) LR 8 Eq 576n, Ramsbotham v Senior (1869) LR 8 Eq 575. Second, that the court's powers in this kind of case – where it is seeking to locate a missing child – are not subject to the limiting principles of the Norwich Pharmacal jurisdiction: see Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. Thus there is no need to establish that the person against whom disclosure is sought has, albeit innocently, been involved in the abducting parent's wrongdoing. The jurisdiction can be exercised against someone who is not merely wholly innocent but also a 'mere witness'. It is enough for the court to exercise jurisdiction that the person from whom information is being sought may have information (however acquired) which may lead to the location of the missing child. "Possibility" is enough; there need not be probability: Ramsbotham v Senior (1869) LR 8 Eq 575 (where the order was made to produce certain documents which, as Sir Richard Malins VC put it at page 578, "it was just possible (I did not think it all probable) … might lead to the discovery of … her residence, or where she is absconding with the wards."). Third, that in aid of this jurisdiction the court can make a variety of orders directed to the Tipstaff, including, in addition to location, collection and passport orders, an order authorising the Tipstaff to enter private residential property, if need be using force to open doors, with a view to searching for, removing and taking into custody anything (for example, a computer or a mobile phone, blackberry or other similar device) which there is reason to believe may contain information throwing light on the missing child's whereabouts: see Re S (Ex Parte Orders) [2001] 1 FLR 308 at page 320.

39. The other aspect of the matter which requires some elaboration relates to the court's powers to seize or block an abducting parent's (access to) funds. The court can make a freezing order to restrain the abducting parent's recourse to his assets and, where the parent has acted in breach of the court's order or breach of undertaking and is thus in contempt, the court can also make a sequestration order: see the decisions of Scott Baker J (as he then was) in Richardson v Richardson [1989] Fam 95 and Mir v Mir [1992] Fam 79. Moreover, the court has power to direct that the sequestered funds be used to fund litigation brought in a foreign court with a view to securing the return to this jurisdiction of the abducted child: see Richardson v Richardson [1989] Fam 95 at 102-103.

40. In that particular case, the sequestered property was land, so one can readily understand why a writ of sequestration was thought appropriate. But if the court has power, as it undoubtedly has, to direct that recourse be had to the abducting parent's sequestered property to fund the foreign litigation necessitated by his wrongful act of abduction, then I can see no reason why the same power should not equally be exercisable in relation to other assets of the abducting parent which the court has seized or taken into its control by some means other than a writ of sequestration (or a garnishee order), for example, as in the present case, by means of the freezing and other orders I made, in particular those directed to X and DP.

41. For the sake of completeness I should perhaps add that, even if CPR Part 25 applies to proceedings such as this, there is nothing in CPR 25.1(1) to limit the interim remedies that the court may grant, for CPR 25.1(3) expressly preserves the inherent jurisdiction of the court.

42. Thus the jurisdiction where the Family Division is concerned with a missing or abducted child. What of the situation where it is concerned, as I am here, with a missing or abducted adult who lacks capacity?

43. I need not rehearse all the learning on this. It suffices if I refer to what I said in Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam), [2006] 1 FLR 867, at para [84]:

"the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions. The main difference is that the court cannot make an adult a ward of court. So the particular status which wardship automatically confers on a child who is a ward of court – for example, the fact that a ward of court cannot marry or leave the jurisdiction without the consent of the court – has no parallel in the case of the adult jurisdiction. In the absence of express orders, the attributes or incidents of wardship do not attach to an adult. But this apart, the court's powers to make orders under the inherent jurisdiction in relation to adults would seem to be as wide as its powers when exercising its inherent parens patriae jurisdiction in relation to children. Just as there are, in theory, no limits to the court's powers when exercising the wardship jurisdiction I suspect that there are, in theory, few if any limits to the court's powers when exercising the inherent jurisdiction in relation to adults."

44. I went on (at para [86]) to observe that "There is also no doubt that the court has a wide and largely unfettered jurisdiction to grant appropriate injunctive relief", adding (at para [89]) that "The court can also grant whatever interlocutory injunctive relief is required 'to preserve or regulate the status quo'." Specifically, and of particular significance in the present context (see Re HM, PM v KH and others [2009] EWHC 2685 (Fam) at para [117]), I went on (at para [91]) to say, citing precedents for the proposition, that:

"In an appropriate case the court can also make tipstaff orders – location orders, collection orders and passport orders – in relation to an adult just as it does in relation to children."

45. In my judgment, and consistently with previous authority, the court has exactly the same power to make orders of the type referred to in paragraphs [32]-[40] above when it is concerned with an adult who lacks capacity as it undoubtedly has when concerned with a child. In particular, the court has exactly the same powers when it is concerned to locate the whereabouts of a missing or abducted adult lacking capacity as it has when concerned to locate the whereabouts of a missing or abducted child.

46. Accordingly, there was jurisdiction in the present case to make each of the various orders referred to in paragraphs [24] and [30] above. The reasons for making these orders have already been explained in paragraph [33] above and the justification for doing so in paragraph [22] above.

47. To what I have already said I ought to add some further explanations in relation to the orders I made permitting the use of PM's blocked funds for the payment not merely of his costs here and in Israel – which is, after all, a standard feature of most freezing orders – but also, and from his point of view much more controversially, for the payment of KH's legal costs both here and in Israel as also of the costs in Israel of HM's guardian. These orders were bitterly and repeatedly opposed by PM in a succession of emails, some sent to the Official Solicitor's solicitors and some to me. Thus in an email dated 1 April 2010 PM complained that his "entire asset base" was being "depleted" in a manner which he said was "unlawful, unreasonable and beyond the wildest realms of natural justice." To that my response was and is that:

i) The first and overriding priority was to ensure HM's removal from PM's care and her repatriation to this country, something which it had become apparent was going to be achieved if at all only by the commencement of proceedings in Israel. Those proceedings were, as I have already said, essential if there was to be any chance of securing HM's repatriation. I was not prepared to tolerate the possibility of KH's lack of resources – and she was being reduced to trying to borrow from friends and relatives – proving either an obstacle or even an occasion for delay. The essential need was to get the proceedings under way and to ensure appropriate funding both for KH, as the applicant, and for HM's court appointed guardian.

ii) The direct and immediate cause of the need to commence proceedings in Israel was PM's actions in defying the orders of this court and abducting HM to Israel. The direct and immediate cause of the prolongation of those proceedings was PM's evident determination to fight as long as possible in the courts in Israel in order to stave off HM's return to this country. But for what PM did, there would have been no occasion either to block or to make use of PM's funds.

iii) I was careful to ensure that each of these orders made clear that what I was authorising was merely "in the first instance." The ultimate incidence of all these costs – the question of whether PM or someone else should, at the end of the day, have to foot the bill – is reserved for decision on a future occasion. It will be open to PM, if he wishes, to apply for relief, for example by asserting that he should not have to bear all or any of these costs and that others (KH, HM, the States of Guernsey or the Official Solicitor) should be responsible in whole or in part for the costs.

48. Given this last point, and given that I may accordingly have to hear further argument on the matter on some future occasion, I propose to say no more at this stage.

49. PM was also very critical of the fact that the order I made on 16 March 2010 backdated the payment of the weekly allowance of £250 only to 5 March 2010 and not to December 2009. My reasons for doing so were simple. It was evident that, despite having received no payments from this source since then, PM had nonetheless managed to cope financially in terms of his day to day living expenses. His emails did not suggest the contrary, though he did complain that he had been unable to pay his mortgage for 5 months. Nor was there any suggestion that he needed the arrears, for example, to repay others who had lent him money for the purpose. So, on the face of it, payment of the arrears would simply have put PM in control of a capital sum of £3,500 – the sum as he had calculated it – for which there was, so far as I was aware, no need. Moreover, the payment of such a sum to him would have been quite inconsistent with the court's wider purpose as I described it in paragraph [33] above.

50. Given that my purpose in making all these orders has now been achieved, for HM has now been returned to the jurisdiction, there is no continuing need for some of the orders I made to remain in place.

51. The first and most obvious example is the freezing order, last extended on 16 March 2010 and due to expire on 14 April 2010. The Official Solicitor appropriately did not seek any further extension of the order in its previous all-embracing terms but indicated, in a letter from his solicitors dated 14 April 2010, that he had it in mind to make an application for HM's costs against PM. (I note that HM has public funding in these proceedings.) He accordingly invited me to extend the freezing order but limited in scope to the funds held by X. KH plainly did not require any similar protection in relation to any application for costs she might wish to make, given that, as I have already described, those costs have in fact been paid as matters proceeded. And I assumed (correctly, as I was subsequently informed) that the States of Guernsey, whatever its stance in relation to costs might be, did not seek any protective relief. Accordingly, on 14 April 2010 I made an order extending the freezing order, but only to this limited extent, the order being expressed to expire on 14 May 2010. I make clear that this is not because I have formed any view as to the merits or otherwise of any application in relation to costs that the Official Solicitor may make. But the Official Solicitor is, in the circumstances, and not least given all the evidence I have heard and in the light of PM's own actions and expressed attitude towards the court, entitled to be protected against what I am satisfied is the very real risk that, unless injuncted in this way, PM would seek to put his assets beyond the reach of the court.

52. At the time when I made that order, and indeed at the time when I sent this judgment to the parties in draft on 20 April 2010, I had not considered the independently continuing effect of the order I had made following the hearing on 17 December 2009 in relation to the funds held by DP; the effect of that order is to require the Official Solicitor's solicitors to deal with those funds only in accordance with the directions of the court. Having made an order on 14 April 2010 in the terms referred to above, and believing that most of his assets were accordingly now unfrozen, there seemed to me to be no need to make the order sought by PM in emails he sent me on 19 and 20 April 2010 asking for immediate payment of the sum of £15,000 to solicitors. Following receipt of the draft judgment, PM brought to my attention the order relating to the funds held by DP and the fact, as he asserted, that his only liquid funds are the funds held by X (blocked by the order I made on 14 April 2010) and the funds previously held by DP (blocked by the order I made in December 2009). The reality therefore, he says, is that all his liquid funds are blocked, so the assumption upon which I had declined to make the order he sought was erroneous. I raised the matter with the Official Solicitor's solicitors, who in a letter dated 29 April 2010 made it clear that the amounts they are seeking from PM by way of costs exceed the aggregate of the two remaining blocked funds – and that is quite apart from various claims that I understand KH and the States of Guernsey are considering making against PM. Therefore, although the assumption upon which I previously decided not to make the order sought by PM turns out to be wrong, I am not, in the circumstances as they are now presented to me, prepared to make the order he seeks here and now, absent unqualified agreement by the Official Solicitor, KH and the States of Guernsey which is not yet forthcoming. The matter can be further considered at an inter partes hearing at which all the interested parties can express their views as to what should happen to the two blocked funds. PM can of course renew his application, or make whatever other application he wishes in relation to the blocked funds.

53. Likewise, given that my purpose in making all these orders has now been achieved with HM's return to the jurisdiction, there is no continuing need to conceal from PM what has been going on. On 19 April 2010 I therefore made an order providing that, notwithstanding any previous order to the contrary made by me on or after 2 November 2009, PM is now to be served with (i) all the orders made by me on or since 2 November 2009, (ii) the transcripts of the evidence I heard on 12 November 2009 and (iii) the expert evidence I read during the hearing on 5 February 2010, and further providing that nothing in any of those orders is to prevent PM having access to any documents to which he would have been entitled but for those orders.

54. It may be that there are other orders which PM will wish to have discharged or varied. He is, of course, at liberty to make any application in this regard he wishes. Any such application will be considered on its merits in due course. 

55. In relation to HM's predicament, there is a final matter on which observations are called for: the relative poverty of the legal protections for a vulnerable adult who has been or is at risk of being abducted when contrasted with the protections available in precisely the same circumstances if the victim is a child.

56. Had HM been a child, proceedings could and, no doubt, would have been brought immediately in the courts of Israel in accordance with the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the 1980 Convention). PM's removal of HM to Israel, alternatively, his retention of her there, would have 'wrongful' within the meaning of Article 3 of the 1980 Convention, as being in breach of 'rights of custody' vested in both KH and the English court: as to the latter see In re H (A Minor) (Abduction: Rights of Custody) [2000] 2 AC 291 and In re C (A Child) (Unmarried Father: Custody Rights) [2002] EWHC 2219 (Fam), [2003] 1 WLR 493. And had HM still been a child under the age of 16, PM would also have committed a criminal offence under section 1 of the Child Abduction Act 1984: see Smith and Hogan, Criminal Law, ed 12, at para 17.13.1.1.

57. But because HM is an adult, albeit an adult who in many ways functions as if she was still a child, she has neither of these protections.

58. The Convention on the International Protection of Adults signed at The Hague on 13 January 2000 (the 2000 Convention) applies, in accordance with Article 1, to "the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests." It entered into force in accordance with Article 57 on 1 January 2009. However, although it was ratified by the United Kingdom in relation to Scotland as long ago as 5 November 2003, and is in force in Scotland in accordance with section 85 of and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000, and although the relevant domestic legislation in this jurisdiction (section 63 of and Schedule 3 to the Mental Capacity Act 2005) has been enacted, the 2000 Convention has not yet been ratified by the United Kingdom in relation to England and Wales and is therefore not yet in force in this jurisdiction. The Official Solicitor tells me that the Office of the Public Guardian holds the policy for extending ratification of the 2000 Convention in relation to England and Wales and that it began a scoping exercise during 2009. We can only await developments. However, it might be thought that the sooner the 2000 Convention is brought into force in this jurisdiction the better, though in saying this I appreciate that, as Israel has not as yet signed the 2000 Convention, it would not in any event have been available in the present case.

59. It is doubtful whether the criminal law provides any very obviously effective remedy where someone in HM's position is abducted. Three offences may be considered.

60. The first is the common-law offence of kidnapping. As defined in R v D [1984] AC 778, one of the ingredients of the offence is the use of force or fraud sufficient (see Smith and Hogan at para 17.12.2.1) to overcome the victim's will or vitiate her consent. But if the victim is a compliant young child (or an adult functioning in the same way as a child) who is being taken away by a familiar parent, it may be difficult to establish that either force or fraud needed to be used to achieve the perpetrator's objective: see Smith and Hogan at para 17.12.2.3 citing Glanville Williams, Can Babies be Kidnapped? [1989] Crim LR 473.

61. The second is the offence of hostage-taking under section 1 of the Taking of Hostages Act 1982, which makes it an offence for anyone, anywhere in the world, to detain another and, in order to compel "a State, international governmental organisation or person" to do or abstain from doing any act, threaten to kill, injure or continue to detain the hostage. Given that the Act was intended to give effect to this country's obligations under the International Convention against the Taking of Hostages of 17 December 1979, in which the relevant wording in Article 1 is "a State, an international intergovernmental organization, a natural or juridical person, or a group of persons", it would seem that that the statutory word "person" is not qualified by the preceding word "governmental" – for if that had been the intention the statute would presumably have said "a State or international organisation or person". So it would seem at least arguable that the Act, like the Convention, applies to what, as in this case, is a purely domestic, intra-familial, abduction, albeit to another country, even though it was designed to deal with international terrorism. On the other hand, section 2(1)(a) of the Act provides that proceedings shall not be instituted except by or with the consent of the Attorney General. So despite what PM said in his emails of 7 and 23 November 2009, a prosecution might be difficult.

62. The third is the offence of blackmail contrary to section 21 of the Theft Act 1968. The problem here is that central to the offence as defined in section 21(1) is the requirement that the unwarranted demand with menaces must be "with a view to gain for himself or another or with intent to cause loss to another" as those expressions are defined in section 34(2)(a), namely "as extending only to gain or loss in money or other property." So, as it is put in Smith and Hogan at para 25.1.4, the offence is concerned only with invasions of economic interests.

63. On 10 November 2009, and clothed with the authority of the order I had made on 2 November 2009, the Official Solicitor's solicitors contacted the Crown Prosecution Service (CPS) with a view to ascertaining whether the CPS might be willing to commence criminal proceedings against PM for kidnapping HM. The CPS responded promptly and helpfully on 12 November 2009, giving as its preliminary view that there were "significant difficulties" in seeking to extradite PM on a charge of kidnapping because of its "grave reservations" as to how the Crown could prove the necessary ingredient of 'force or fraud'. On 13 November 2009 the Official Solicitor's solicitors invited the CPS to consider whether there would be any prospect of convicting PM of the offence of hostage-taking under the Taking of Hostages Act 1982. On 17 December 2009 the CPS indicated that it was "cautiously optimistic" that it was going to be able to charge PM with blackmail, a view reiterated on 26 January 2010 when it said that there was an "arguable" case of blackmail, though "not a great case".

64. However, on 5 February 2010 the CPS sent the Official Solicitor's solicitors an email indicating that, although "there is an arguable case of blackmail based on [PM's] threat that unless the parties agreed to his demands, one of which related to financial arrangements, he would not return [HM] to this country", a prosecution would be "difficult" because "the precise position of the parties in relation to the cost of [HM's] care seems far from clear" and because of the fact that "the demand was copied to a Lord Justice of Appeal (which someone pursuing a course of criminal conduct would not normally do)." The email continued by saying that because it now seemed that civil proceedings could be taken in Israel and, indeed, would be taken even if PM were to be arrested on an extradition warrant, the CPS did not propose to commence criminal proceedings.

65. It might be thought that there is a gap here in the criminal law which ought to be investigated with a view to seeing whether it might not appropriately be stopped up.

66. There is one final matter I should mention which, it might be thought, also calls for consideration by the appropriate authorities. The case initially came before me whilst I was still a puisne judge of the Family Division, an office which I vacated on 12 October 2009 upon my appointment as a Lord Justice of Appeal. I was, nonetheless, able to continue to deal with the case thereafter, as in the circumstances I was persuaded was appropriate if permissible, by virtue of section 9(1)(a) of the Senior Courts Act 1981 (formerly the Supreme Court Act 1981), a provision which enables a judge of the Court of Appeal to "act as" a judge of the High Court. That was because the proceedings in the present case had been commenced and remained in the Family Division of the High Court, the jurisdiction invoked being, as I have indicated, the inherent jurisdiction of the High Court.

67. As will be appreciated, however, the proceedings might have been in the Court of Protection, the jurisdiction invoked being that under the Mental Capacity Act 2005. In that event, I would not have been able to deal with the matter after 12 October 2009. The Court of Protection is not part of the High Court, being, as provided by section 45(1) of the 2005 Act, itself a superior court of record. Section 46(1) of the 2005 Act provides that the jurisdiction of the Court of Protection is exercisable by "nominated" judges and section 46(2) provides, so far as material for present purposes, that to be nominated a judge "must be … a puisne judge of the High Court". Section 9(1) of the 1981 Act has no application to the Court of Protection, because although it authorises a judge of the Court of Appeal to "act as" a Judge of the High Court, he is not, even when so acting, "a puisne judge of the High Court". So far as I am aware, there is no equivalent to section 9(1) either in the 2005 Act or anywhere else.

68. The consequence is odd, to say the least, given that most of the time precisely the same issues are being considered in accordance with precisely the same principles in each of the two jurisdictions: cf, for example, Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam) at para [22]. The result is that a puisne judge of the High Court who has been a nominated judge of the Court of Protection and, as in my case, has frequently acted as such, becomes statutorily incompetent to do so upon advancement to the Court of Appeal.  It is difficult to think that this consequence was intended,  indeed, given the philosophy encapsulated in section 9(1) of the 1981 Act, that it is even rational.