HM (An Adult), Re [2010] EWHC 2107 (Fam)

[2010] EWHC 2107 (Fam)Case No FD06P02361
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 August 2010
Before
LORD JUSTICE MUNBY(sitting as a Judge of the Family Division)
Between
In the Matter of HM (An Adult)ClaimantPMClaimant(1) KHDefendantsTHE STATES OF GUERNSEYInterested Party
The Claimant (father) was neither present nor representedThe First Defendant (mother) in person for in personMs Lisa Giovannetti (instructed by Bindmans) for Second DefendantMr Jason Hill (instructed by the Attorney General’s Office, States of Guernsey) for Interested PartyHearing Hearing date: 20 July 2010
Judgment
[1]On 28 October 2009 I handed down a judgment explaining the order I had made on 6 September 2009 following a four-day hearing before me in August 2009: Re HM (Adult), PM v KH and anor [2009] EWHC 2685 (Fam). On 30 April 2010 I handed down a judgment which brought the history of events down to that date: Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), reported as Re HM; PM v KH and HM (By the Official Solicitor); States of Guernsey Interested Party [2010] EWHC 870 (Fam) [2010] 2 FLR xxx. On the same day I handed down a further short judgment whose purpose I shall explain below: Re HM (Adult), PM v KH and anor (No 3) [2010] EWHC 871 (Fam). On 24 June 2010 I handed down a judgment explaining the various orders I had made at a hearing on 30 April 2010: Re HM (Adult), PM v KH and anor (No 4) [2010] EWHC 1579 (Fam).[2]I take those judgments as read and do not propose to set out the background. It suffices to record that the first of the judgments set out my reasons for declaring that it was in HM’s best interests to reside and be cared for at Y and described how, despite that order, her father, PM, removed her to Israel. The second judgment set out, amongst other things, the steps that had had to be taken, both in this country and in Israel, before HM was returned to this county on 8 April 2010 in the care of her mother, KH, pursuant to orders made by the Family Court, District Court and Supreme Court of Israel. The fourth judgment set out, amongst other things, my reasons for deciding that, despite what had happened, it was still in HM’s best interests to reside and be cared for at Y.[3]I now hand down this final judgment to explain the order I made at a further hearing before me on 20 July 2010 which PM again, although he had been given notice, chose not to attend. The order in the form in which it has now been sealed was approved by me on 30 July 2010.[4]KH gave evidence of what she had observed during the course of a ‘skype’ conversation with PM on 17 July 2010, which satisfied her that on that occasion he was in Israel. There is, in fact, nothing to suggest that he has ever returned from Israel. I should add that, although I am satisfied that the applications now before me have been served on PM by email as permitted by paragraph 2 of the order I made on 30 April 2010 (as, indeed, I am satisfied that the order itself was so served), PM is in breach of paragraph 1 of the order, which required him to provide the parties and the court with an address for service.[5]As I explained in my last judgment (Re HM (Adult), PM v KH and anor (No 4) [2010] EWHC 1579 (Fam), para [5(v)]), one of the orders I had made on 30 April 2010 dealt with the following matters: i) It gave directions in relation to the committal application which the Official Solicitor informed me he proposed to make against PM. Included amongst them was a direction that the committal application was not to be listed before any of the six judges of the Family Division who have previously dealt with this litigation. ii) It gave directions in relation to the costs applications being made against PM both by the Official Solicitor and by the States of Guernsey. iii) It directed the Official Solicitor’s solicitors to provide an account (and supporting documentation) in respect of the funds previously held by DP. iv) It recited the disclosure already made to PM by the Official Solicitor’s solicitors and provided that if PM sought to assert that any further documents ought to be disclosed he should apply on notice. v) Finally, it gave directions in relation to any application by PM in respect of costs or in respect of the sums expended from the funds previously held by DP.[6]So far as concerns (i), I need say nothing except that the application, which has now been issued, is, as I understand it, fixed for hearing on 9 and 10 August 2010 by a judge of the Family Division who has had no previous involvement with this litigation.[7]So far as concerns (ii), there are in the event three applications before me.[8](1) The first, dated 28 May 2010, is an application by the Official Solicitor, supported by witness statements by Katherine Gieve dated 29 April 2010 and 2 June 2010. The Official Solicitor seeks an order that PM pay the costs incurred on behalf of HM since 30 October 2009 (the date when he abducted her to Israel) on the indemnity basis. Those costs, it is said, run to many tens of thousands of pounds. They include, I should add, the fees incurred by the Official Solicitor in obtaining the legal advice from Israeli lawyers which I referred to in Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), para [28]. HM has been publicly funded throughout but, as Ms Gieve correctly points out, a duty is owed to the Legal Services Commission to seek an order for costs.[9](2) The second, also dated 28 May 2010, is an application by the States of Guernsey, supported by witness statements by Lisa Evans and by Paul Allen dated, respectively, 28 May 2010 and 14 July 2010. The States of Guernsey seeks orders that PM(a) pay its costs in relation to the hearings before me on 30 April 2010 and 20 July 2010 in the sum of £4,475 and(b) reimburse it the aggregate sum of £15,548.52 (being the costs and expenses of KH’s travel to and accommodation and subsistence in Israel, as met by the States of Guernsey).[10](3) The third, dated 29 June 2010, is an application by KH, supported by her affidavit sworn on 1 July 2010. She seeks an order that PM pay her the aggregate sum of £8,925, being that part of her costs of the proceedings in Israel which she funded from monies she borrowed from friends and relatives. The greater part of those costs have, in accordance with previous orders I made, been paid out of the various funds I had blocked: see Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), paras [24(v)], [30(ii),(iii),(v)], [32(v)], [33(v)], [39]-[40], [47].[11]So far as concerns (iii), Ms Gieve’s statements of 29 April 2010 and 2 June 2010 set out what is said to be, and what certainly appears to be, a fully vouched account of the funds previously held by DP since their transfer to the Official Solicitor’s solicitors on 8 January 2010. The various disbursements all appear to have been in accordance with the various orders I made (and I shall so declare), though it is important to note, as Ms Giovannetti very properly reminds me, that the orders permitting these disbursements were, deliberately, expressed to be “in the first instance” only and the question of their ultimate incidence is therefore a matter for determination today: see Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), paras [30(ii)], [47]. The remaining balance of £9,598.31 is, in accordance with a consent order I made on 30 April 2010, payable to PM: see Re HM (Adult), PM v KH and anor (No 4) [2010] EWHC 1579 (Fam), para [5(ii)].[12]So far as concerns (iv) and (v), PM, as I have said, did not appear. Nor has he filed any application or any evidence. He did, however send the following email to the Official Solicitor’s solicitors on 14 July 2010:
“Please ensure that this email is put before the Court at (and /or before) the proposed hearing on 20th July 2010 and note the following, my formal submissions:- I HEREBY FORMALLY APPLY FOR AN ORDER RELEASING THE [X] FUNDS TO ME SO THAT I AM ABLE TO FINANCE LITIGATION IN THE UNITED KINGDOM. 1 Judge Munby should not sit in this or any other matter to do with me and/or [HM]. 2 I cannot attend court to make full submissions as I have recently been made aware that I am liable to summary arrest/incarceration if I land in any port in the United Kingdom. 3 There are numerous statements/orders/judgments by judge Munby setting out the reasons why he himself considers that he should no longer sit in these matters – for example:- “On 21 April 2010 I was sent copies of certain emailed correspondence between PM’s solicitors and the Official Solicitor’s solicitors, including a letter from PM’s solicitors to the Official Solicitor’s solicitors dated 19 April 2010 which, so far as material for present purposes, said: “my instructions are limited only to considering what action if any my client should take against Justice Mumby [sic]. I have no instructions in the general family proceedings.” and Judge Munby therefore issued a Judgment to the effect that:- “Given the nature of his solicitor’s instructions, it is plainly not appropriate for me to deal with the question of whether blocked funds should be released to PM (or his solicitors).” 4 Bindmans are again requested to provide me with copy invoices in respect of the Israeli Lawyer's advice and translations which I have previously (on more than one occasion) requested in writing and which Bindmans refuse to provide, despite making a claim for these fees within their costs application on behalf of the Official Solicitor. 5 Bindmans are again requested to provide me with a copy of their notes of the Hearings on the 17th April and 30th April 2010 which I have requested in writing and which Bindmans refuse to provide, as I was not present at these Hearings. 6 Guernsey is not (and has always refused to be) a party to the proceedings and is most certainly not ‘the third defendant’' as their claim suggests. Any claim Guernsey might wish to make should be the subject of separate proceedings and should not in any event include claims for quantities of wines, cigarettes and general entertainment consumed by [HM]’s mother. For the avoidance of any doubt, I am well aware that I am the only party required to comply with (unsealed) orders and that all other parties can (and regularly do) disobey (sealed) Orders. This bias is intolerable and is in breach of my Article 6 Rights.” “On 21 April 2010 I was sent copies of certain emailed correspondence between PM’s solicitors and the Official Solicitor’s solicitors, including a letter from PM’s solicitors to the Official Solicitor’s solicitors dated 19 April 2010 which, so far as material for present purposes, said: “my instructions are limited only to considering what action if any my client should take against Justice Mumby [sic]. I have no instructions in the general family proceedings.” “Given the nature of his solicitor’s instructions, it is plainly not appropriate for me to deal with the question of whether blocked funds should be released to PM (or his solicitors).”
[13]Before turning to deal with the applications which are before me it is convenient to address the other issues raised by PM in his email.[14]I deal first with the point raised in paragraphs 1 and 3 of his email. PM asserts that there are “numerous” occasions when I have said that I should “no longer sit in these matters.” That is not so. I have from time to time reminded the parties that I cannot be expected indefinitely to continue dealing with this litigation, given my appointment to the Court of Appeal. The reason for that is obvious but has nothing to do with PM’s complaint and plainly cannot be the basis of any proper contention that I recuse myself. Furthermore, and as I have mentioned above, I directed that the Official Solicitor’s application for committal was to be heard by a judge who has had no previous involvement with the litigation: see Re HM (Adult), PM v KH and anor (No 4) [2010] EWHC 1579 (Fam), para [5(v)]. That again has nothing to do with any of the matters which are currently before me. It merely reflected my view (and this is not the first case in which I have taken this course) that it may sometimes be inappropriate for the judge who has ongoing responsibility for the welfare of a child or incapacitated adult to try committal proceedings founded on an alleged breach of his own order. Again, this cannot be the basis of any proper contention that I recuse myself today[15]The only matter PM can be referring to – despite his expansive reference to “numerous” occasions – is that which I dealt with in the judgment to which he refers: Re HM (Adult), PM v KH and anor (No 3) [2010] EWHC 871 (Fam). In the circumstances I should set that judgment out in full (it is very short):
“[1] My second judgment in this matter was sent to the parties in draft on 20 April 2010 with an indication that it would be handed down on 30 April 2010: Re HM (Adult), PM v KH and anor (States of Guernsey, Interested Party) (No 2) [2010] EWHC 870 (Fam). [2] In paragraphs [50]-[51] of that judgment I explained why the general freezing order which I had last extended on 16 March 2010, and which was due to expire on 14 April 2010, was not being extended and why, in its place, I had on 14 April 2010 made a freezing order limited in scope to the funds held by X. [3] In paragraph [52] I referred to emails PM had sent me on 19 and 20 April 2010 asking for, as I put it in my judgment, “immediate payment of the sum of £15,000 to solicitors.”
I explained why I was not prepared to make the order he sought. I indicated that he could of course make a further application for such an order. [4] When I wrote that, and when I sent the draft judgment to the parties on 20 April 2010, I had assumed that the solicitors were being instructed by PM in relation to these proceedings. [5] On 21 April 2010, the day after I had sent out the draft, I was sent copies of certain emailed correspondence between PM’s solicitors and the Official Solicitor’s solicitors, including a letter from PM’s solicitors to the Official Solicitor’s solicitors dated 19 April 2010 which, so far as material for present purposes, said:
“my instructions are limited only to considering what action if any my client should take against Justice Mumby [sic]. I have no instructions in the general family proceedings.” [6] Given the nature of his solicitor’s instructions, it is plainly not appropriate for me to deal with the question of whether blocked funds should be released to PM (or his solicitors) as sought in his emails to me of 19 and 20 April 2010. Accordingly, any application of the kind referred to in paragraph [3] above which PM may wish to pursue will have to be made to another judge.”
So far as the Official Solicitor is aware, no such application has been made. Ms Giovannetti submits, and I agree, that this does not provide any principled basis for any objection to my dealing with the matters currently before me. Indeed, as she points out, I am best placed to do so, as the judge who has dealt with the proceedings to which the costs now in issue relate. “my instructions are limited only to considering what action if any my client should take against Justice Mumby [sic]. I have no instructions in the general family proceedings.”[16]I should add that the allegations made by PM in the final paragraph of his email are as groundless as his allegations of bias and breach of his Article 6 rights. They are the response of a man who is used to having his own way, cannot tolerate being thwarted and who is, no doubt, frustrated that his defiance of the court has not achieved what he had hoped.[17]In relation to the point made by PM in paragraph 2 of his email, neither I nor the Official Solicitor knows what he is referring to. And in any event, as Ms Giovannetti observes, even if there is some reason why PM cannot enter the United Kingdom, there is nothing to prevent him filing detailed evidence and/or written submissions – or, I would add, seeking to address the court by video-link: see Polanski v Condé Nast Publications Ltd [2005] UKHL 10, [2005] 1 WLR 637. Yet he has neither done so nor provided any explanation for his failure to do so. The order I made on 30 April 2010 directed that any application by PM and any evidence from PM was to be filed by 15 June 2010. He has filed no evidence, either within the required time or at all.[18]In relation to the point made by PM in paragraph 4 of his email, Ms Giovannetti submits, correctly, that the documentation sought by PM may be of relevance when it comes to the assessment of the quantum of costs by a Cost Judge but is of no relevance to the only issue before me, namely, who should pay these costs.[19]So far as the point made by PM in paragraph 5 of his email is concerned, Ms Giovannetti points out that the two hearings in question were inter partes hearings of which PM had notice but which he chose not to attend (though he has nonetheless, of course, been supplied with copies of the resulting judgments). She observes that he has identified no basis upon which he is entitled to the Official Solicitor’s notes of the hearings. Quite different considerations, she says, apply where the hearing is inter partes rather than ex parte. She submits, and I agree, that the recognised obligation to supply a note when the hearing is ex parte does not apply when it is inter partes. And in any event, she says, the notes have not in fact been typed up and there is no reason why the Official Solicitor should be put to this additional expense. I agree.[20]I shall deal with the remaining parts of PM’s email in due course. I return to the other applications before me.[21]First, however, and of central importance, I must deal with HM’s welfare. A progress report provided by HM’s care co-ordinator indicates that HM is thriving at Y. KH has concerns that, as happened at X, this may reflect a ‘honeymoon’ period, though she acknowledges that in due course HM settled down well at X. She does not, however, propose any change in HM’s placement. Nor does either the Official Solicitor or the States of Guernsey. Indeed, none of them invites me to make any further orders in respect of HM’s welfare at present. I am entirely satisfied that there is no need for any such order.[22]Indeed, I am satisfied that the time has now come for the court to disengage (as had been Roderic Wood J’s intention in November 2008 and my intention in September 2009). It is unthinkable that the court should continue to be engaged indefinitely and, even allowing for PM’s current stance, I see no useful role for the court in the immediate or mid-term future.[23]KH has been appointed by the Royal Court of Guernsey as HM’s sole guardian: see Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), para [26]. I have by now had the opportunity of hearing from her and observing her in court on many occasions since I first became involved with this litigation almost a year ago. I have no doubt at all, whatever PM may say or think, that KH’s only concern in all this has been her single-minded anxiety for her daughter’s welfare and her single-minded determination to do whatever she can to further her daughter’s best interests. Equally, and although I do not question PM’s love for his daughter, I have no doubt that KH has a far greater understanding and appreciation of where her daughter’s best interests truly lie than PM does or, I fear, ever will. I have no concerns at all about confiding future decision-making about HM to KH and the States of Guernsey, assisted, as they will be, by the care co-ordinator.[24]I propose therefore to direct that the proceedings be adjourned generally, albeit with liberty to apply. For the avoidance of doubt, I make clear, as I directed by an order I made on 30 April 2010 (repeating earlier orders to the same effect), that PM is forbidden from bringing any proceedings relating to HM, either in this court or in a County Court, without the permission of this court or the Court of Protection: see Re HM (Adult), PM v KH and anor (No 4) [2010] EWHC 1579 (Fam), paras [6]-[7], [26]. In his case, therefore, the liberty to apply is subject to his first obtaining permission to apply from the court.[25]I return to the three applications before me.[26]Common to all three applications is the question of whether or not PM should pay the costs and expenses incurred in and about this litigation by the Official Solicitor, by the States of Guernsey and by KH, since he abducted HM on 30 October 2009. In my judgment he should.[27]Had these proceedings related to a child, the starting point would have been the principle that, ordinarily, the court makes no order as to costs in children’s cases, though this has always been subject to the exception that the court can, though it is not obliged to, make a costs order against a party who has behaved unreasonably in relation to the litigation: see Re N (A Child) v A and others [2009] EWHC 2096 (Fam), [2010] 1 FLR 454, paras [20]-[21], [47]-[50]. Had these proceedings been in the Court of Protection, the general rule would likewise have been no order as to costs: rule 157 of the Court of Protection Rules 2007. Rule 159, however, permits the Court of Protection to depart from this “if the circumstances so justify”. Rule 159 requires the Court of Protection to have regard to all the circumstances, including (rule 159(1)(a)) “the conduct of the parties”, which in turn includes (rule 159(2)(a)) “conduct before, as well as during, the proceedings” and (rule 159(2)(c)) “the manner in which a party has made or responded to an application or a particular issue”.[28]In fact, since these proceedings are in the High Court, albeit that they relate to an incapacitated adult, none of these principles is directly in play. But in my judgment similar principles ought mutatis mutandis to apply to such proceedings.[29]The reality is very simple. In defiance of this court PM abducted HM and took her to Israel on 30 October 2009. His actions were wrongful and unlawful as well as being quite plainly contrary to HM’s best interests: see Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), para [22]. This was, in my judgment, misconduct – both misconduct as a parent and litigation misconduct – of a very high order. It was, in my judgment, misconduct which plainly entitles me to order PM to pay the costs and which, moreover, fully justifies me in making such an order. The direct and immediate cause of all the litigation since 30 October 2009, both in this court and in the courts of 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 the litigation was PM’s evident determination to do everything in his power to resist HM’s return to this country. But for what PM did, there would have been no occasion for any of this litigation. But for what PM did, none of these costs would have been incurred. Why should PM not be ordered to pay the costs and, moreover, on the indemnity basis?[30]Save as to the claim by the States of Guernsey (which I consider below), PM has put forward no evidence or argument in answer to the claim that he pays the costs. And I can think of no reason why he should not pay the costs. In particular, this is not, unlike many such cases, the kind of case in which making the order sought is likely to make matters any worse than they already are or where not making the order sought is likely to have any beneficial effect, whether on HM, KH or anyone else. Whether I make the order or decline to make the order will not, in my judgment, have the slightest effect on, or make the slightest difference to, the way in which PM is likely to behave, whether in relation to HM, KH, Y, the States of Guernsey, or the care co-ordinator.[31]If ever there was a case where an order for costs should be made, and, moreover, on the indemnity basis, it is surely this case. In principle, therefore, I am satisfied that, having regard to all the circumstances of this unusual and extreme case, the fair, just and appropriate order is that PM pay the costs on the indemnity basis.[32]The point of principle thus decided, there are certain additional matters I need to deal with. The first relates to the Official Solicitor. I shall make an order that PM pay the costs incurred on behalf of HM since 30 October 2009. He is to pay those costs on the indemnity basis. Absent agreement between the Official Solicitor and PM as to the appropriate quantum, the costs will have to be the subject of assessment by a Costs Judge.[33]As I have mentioned, the costs the Official Solicitor seeks, and which I agree he is entitled to recover as against PM, include the costs he incurred in obtaining legal advice from Israeli lawyers. It was essential to obtain such advice if this court was to be in a position to decide what steps to take, just as it was essential to do so if there was to be any prospect of repatriating HM to this country. The advice which was obtained formed the basis of the proceedings so successfully pursued in Israel. The Official Solicitor asks me to declare that this was a reasonable disbursement on HM’s public funding certificate (both in principle and as to the amount of the costs thereof). I have no hesitation in doing so. It was, to repeat, essential in HM’s interests that such advice be obtained. Without it she would never have been repatriated. And it cannot be said that the actual cost of the advice was other than reasonable.[34]The second matter relates to the position of the States of Guernsey; in particular, the point raised by PM in paragraph 6 of his email as to Guernsey not being a party and thus that any claim it wishes to make should be the subject of separate proceedings. This point is as utterly devoid of any technical as of any substantive merit. Guernsey has, appropriately and helpfully, participated throughout in the proceedings before me as an interested party. As such it is entitled to make an application for payment of its costs. So far as concerns its costs of the proceedings before me it is, for the reasons I have already given, entitled to an order against PM. It has confined its claim to the sum of £4,475 in relation to just two of the various hearings before me. I agree that it is entitled to an order and, in all the circumstances, being satisfied that this is an entirely appropriate and justifiable sum, I shall summarily assess these costs in the amount claimed. I shall accordingly make an order that PM pay the costs of the States of Guernsey summarily assessed in the sum of £4,475.[35]The next matter relates to various other costs and expenses incurred in relation to the litigation in Israel. There are three aspects to this: first, the Official Solicitor invites me to make an order confirming as “final” the various orders I previously made which were expressed as being “in the first instance” only; second, KH seeks an order that PM pay the balance of the legal costs which she incurred in Israel, so as to enable her to repay the monies she had to borrow from friends and relatives; third, the States of Guernsey seeks an order that PM reimburse the £15,548.52 which it expended on meeting the costs and expenses of KH’s travel to and accommodation and subsistence in Israel.[36]Common to each of these three aspects is the question of whether I have jurisdiction to order PM to pay these costs and expenses, being, in contrast to the other sums claimed, costs and expenses incurred, either wholly or in part, in connection with litigation in a foreign court. In an earlier judgment I explained why I had jurisdiction: see Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), paras [39]-[40], [45], applying Richardson v Richardson [1989] Fam 95. That remains my view.[37]There being jurisdiction to make each of the orders sought, the question then arises as to whether, in all the circumstances, I ought in fact to make the orders. So far as concerns the order sought by the Official Solicitor there can, in the circumstances, be only one answer. For all the reasons I have referred to as justifying the other orders he seeks, the Official Solicitor is, in my judgment, entitled to this further order. The entirety of this litigation since 30 October 2009 has been caused by PM. He should pay the costs. There is no reason why either the Official Solicitor or KH should have to pay any part of the costs of the litigation, whether in this country or in Israel. Insofar as those costs have already been met, in accordance with orders I have made, by recourse to funds belonging to PM but under the control of the court, those payments should be confirmed and the orders confirmed as “final”. I am further satisfied, and shall so declare, that the amounts claimed and paid in respect of the proceedings in Israel were reasonable. I shall make an order to that effect.[38]So far as concerns the order sought by KH, the same reasoning leads to precisely the same result as if that part of her costs had been met, like the balance, out of PM’s blocked funds. There is no reason why KH should have to pay these costs and, for the reasons I have already given, every reason why PM should be required to do so. I shall accordingly make an order that PM pay her the aggregate sum of £8,925, being that part of her costs of the proceedings in Israel which she has funded from monies she borrowed for that purpose from friends and relatives. There is no need for these costs to be assessed in any way. It is quite plain from the evidence before me that KH borrowed this amount and then paid it to her Israeli lawyers who, it is equally plain, applied it in meeting their professional bills. Nor is there is any factual basis for disputing the quantum of these bills.[39]The order sought by the States of Guernsey stands in slightly different stead to the others because it relates to KH’s out of court expenses rather than her legal costs. It is also subject to the challenge by PM in paragraph 6 of his email where he says that he should not have to pay for “wines, cigarettes and general entertainment”.[40]So far as the first point is concerned, it has to be remembered that KH went to Israel not merely because she was litigating in the Israeli courts but because I had made an order directing PM to deliver HM into her care in order to facilitate her (HM’s) return to the jurisdiction: see Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), para [24(i)]. So KH went to Israel in order to enforce, in the way I had directed, an order I had made to safeguard HM’s welfare. Had the order directed (say) a social worker or one of the Official Solicitor’s officers to go to Israel for that purpose, the court would plainly have had jurisdiction to order PM to pay the costs and expenses thereby incurred. Why should it make any difference, in circumstances where it was imperative that this exceptionally difficult and sensitive task be undertaken by someone HM would recognise, trust and accept, that the task was entrusted by the court, as in my judgment it had to be entrusted, to KH rather than some professional? It cannot make any difference. This was expenditure which had to be incurred and, to repeat, had to be incurred only because of PM’s own wrongful and unlawful acts. Moreover, the only reason why KH’s stay in Israel became so protracted was because of PM’s response to the litigation. He was no doubt entitled to defend the proceedings as he did. But the proceedings having been necessitated by his own acts, and having been ultimately resolved against him, there is no reason why he should be exonerated from the financial consequences; on the contrary there is every reason why he should reimburse this expenditure. And it can make no difference that he is being required to reimburse the States of Guernsey, which has paid KH’s bills, rather than KH herself.[41]So far as concerns his very general and wholly unparticularised complaints about quantum, there is, I am satisfied, nothing in what PM says. KH has explained to me how she and HM and JM (who, entirely understandably and appropriately, had gone to Israel with her mother to give her practical as well as moral support in an unfamiliar country) spent their time in Israel. PM seems to be suggesting that they were living inappropriately, indeed extravagantly. I am quite satisfied that they were not. HM had to be kept active, happy and amused with appropriate activities. The drinking of wine in moderate quantities is hardly an extravagance in a Mediterranean country. And KH is not to be criticised for smoking in the stressful circumstances in which PM had placed her. KH was in Israel for some eight weeks, from 14 February 2010 until 8 April 2010, together with HM and JM. And there were also the travel costs to and from Israel. I am satisfied that this was necessary and appropriate expenditure and, for all the reasons which by now will be obvious, expenditure which should be recouped from PM. I shall accordingly order that PM reimburse the States of Guernsey the aggregate sum of £15,548.52 it claims.[42]I shall direct that all these amounts are to be paid by PM no later than 1 October 2010.[43]It will be recalled that in his email PM sought an order “releasing the [X] funds to me so that I am able to finance litigation in the United Kingdom.” That ‘application’ was not made in accordance with the directions I had given on 30 April 2010 (see paragraph [17] above) but I am prepared, without objection from the other parties, to treat it as an application before the court.[44]Ms Giovannetti submits that the application should be dismissed. I agree. In the first place PM has provided no details whatever of the “litigation in the United Kingdom” which he has in mind. It is therefore impossible for the court to assess the importance or potential merits of such litigation. Secondly, and, as Ms Giovannetti points out, in breach of one of the orders I made on 12 November 2009 (see Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), para [24(iii)]), PM has never provided details of his assets. Moreover he has provided no evidence in support of his application. It is therefore impossible for the court to know whether the release of these particular funds is necessary in order to fund the proposed litigation. For these reasons I will make an order dismissing PM’s application.[45]Ms Giovannetti invites me to make a garnishee (third party debt) order in relation to the X funds in accordance with CPR Part 72, so as to ensure that X has no remaining liability to PM. Her application is supported both by Mr Hill, on behalf of the States of Guernsey, and by KH. I agree that such an order is appropriate, as I also agree that the order I made on 6 November 2009 (see Re HM (Adult), PM v KH and anor (No 2) [2010] EWHC 870 (Fam), para [24(ii)]) can properly be directed to stand as an interim third party debt order, with no further interim order being required. Plainly, as Ms Giovannetti acknowledges, PM and X should be given an opportunity to object to the making of a final third party debt order. I shall give appropriate directions with a view to the further consideration of a final third party debt order against X being adjourned to be heard by the judge hearing the committal application on 9 August 2010.[46]The question then arises as to how the sums recovered under the third party debt order should be apportioned as between the Official Solicitor, on behalf of HM, the States of Guernsey and KH, for those sums will suffice to meet only a fraction of PM’s overall liabilities to the three claimants. In my judgment, KH’s claim should have priority, so that she is put in a position to discharge her legal (and moral) obligations to the friends and relatives who rallied round in her (and HM’s) hour of need and lent her the money to get the proceedings in Israel under way. As to the balance, the Official Solicitor and the States of Guernsey are agreed that it should be divided in the ratio of 80 (HM) and 20 (States of Guernsey). I shall make an order accordingly.[47]There is one final matter which arises in relation to these applications. My order of 30 April 2010 directed that the applications and evidence were to be filed by 28 May 2010. In the event (see paragraphs [8]-[10] above), KH made her application out of time and both the Official Solicitor and the States of Guernsey sought to rely upon additional evidence also filed out of time. I am satisfied that PM will suffer no injustice if I extend time, as I propose to. In saying that I have very much in mind what PM said, and more particularly what he did not say, by way of answer to these applications in his email.[48]Before parting for the last time with this litigation, I think it right to add a few further words about KH, in addition to what I have already said in paragraph [23] above.[49]Ms Giovannetti has helpfully brought to my attention KH’s concern and worry that because, in the past, her contact with HM (and, to a lesser degree, with professionals concerned with HM’s care) has been regulated by orders of the court, any court which has to consider matters in the future might be left with the impression that she poses some threat to HM’s welfare, or has behaved unreasonably. For my part I would wish to make clear, and indeed I emphasise, that there is absolutely no basis for any such concern or worry. On the contrary, I would be very concerned indeed if any such impression were to be conveyed, whether because of anything I have said (or not said) or for any other reason.[50]Ms Giovannetti on behalf of the Official Solicitor points out that one of the orders I made on 30 April 2010 contained the following recital:
“AND UPON the Court considering that as at the date of this order it is neither necessary nor in HM’s best interests to restrict or regulate contact between HM and KH.”
And, as she says, that remains the position. She summarises the Official Solicitor’s appraisal as follows: i) It is clear from the evidence the court has considered, including the various expert reports, that KH’s conduct has never undermined the stability of any of HM’s placements, or posed a threat to HM’s welfare. ii) To the contrary, the evidence demonstrates that KH has been able to establish a good working relationship with HM’s professional carers. When she has had concerns or suggestions about HM’s care, she has been able to raise them in a constructive manner. iii) She has also shown a high degree of insight into HM’s evolving needs as she has grown from a child into a young adult. iv) Indeed, KH’s conduct throughout this litigation has demonstrated her ability to put HM’s needs and interests before her own.[51]I agree entirely with that analysis and endorse it unhesitatingly and without qualification.[52]KH expresses her concern that each time new professionals become involved in the case it takes some time to establish that she is not an unreasonable parent who simply cannot work constructively in HM’s best interests. She believes that this stems from an underlying assumption that the lengthy and protracted court hearings are the result of ‘warring parents’ who simply cannot or will not agree with each other. Any such appraisal would, in my judgment, be a travesty. I would urge anyone tempted to adopt such a view to read the judgments, in particular the judgment which Roderic Wood J gave on 21 November 2008 and my first two judgments, handed down on 28 October 2009 and 30 April 2010 respectively. The reality, as they illustrate, is that the driver of this litigation is, and has for a long time been, PM’s relentless determination to have his own way, come what may, and to wear down anyone and everyone who stands in the way.[53]KH feels that what she calls the core reasons for PM’s litigation behaviour have not been assessed. She believes, and I can well understand why, for it chimes with my own assessment of his behaviour and personality, that PM has used litigation as a form of domestic abuse so that he can continue to exert power and control. She feels that throughout the protracted proceedings the judicial system has not acknowledged or addressed this issue, with the consequence, she says, that she has been left unprotected and vulnerable to further abuse; a situation compounded more recently by the necessity to represent herself as a litigant in person, a task which, she says, has placed an enormous strain on her in difficult and distressing circumstances. She adds:
“It is no exaggeration to say that I am physically and emotionally exhausted, the experience in Israel was traumatising and had it not been for [JM]’s support, I believe I would have caved under the pressure and been forced to accept that there was nothing else I could do to protect [HM] and return home without her. We are all left struggling to gain some sense of equilibrium.”
[54]Her fear, given the fact that it is, in her view, highly likely that at some point PM will bring further court proceedings, is that if she was no longer able to fight for HM “because I am so worn down by PM’s behaviour (a position to which I am frighteningly close)”, it would have disastrous consequences for HM and, indeed, for JM and herself.[55]Ms Giovannetti accepts that the question of PM’s motivation and the issue of litigation as a form of domestic abuse has not been explored with him in evidence. But, she tells me, the Official Solicitor agrees that it would be helpful and appropriate if in this the judgment I explained the effect that PM’s conduct (including the unremitting litigation, as well as his abduction of HM) has had on KH and JM, and, in particular, highlighted the potential impact on KH’s continuing ability to care for and support HM.[56]I would not wish anyone to underestimate the harrowing toll that PM has had on KH or the effect on her of this seemingly unrelenting litigation. Many would have buckled under the strain. I am saddened though not surprised to hear KH’s account – an account which I have no reason to doubt and every reason to accept. The calm and even cheerful attitude she is able to evince in court masks, I do not doubt, the inner turmoil which she has described so eloquently. It is testament to her love and devotion as a mother that she has found the fortitude to soldier on through so many court hearings both in this country and in Israel. Both for her sake and, most importantly, for HM’s sake (and I do not forget JM in this context), there must be an end to this litigation. And that is why, in addition to all the injunctions I have had to impose in order to moderate and control his behaviour, I have had to forbid PM to make any further application to the court without permission.

Cited in 3 later judgments