In a recently published Court of Protection case, the judge granted a local authority’s application for a ‘Hadkinson order’ preventing a father from taking part in legal proceedings regarding his daughter.
Hadkinson orders can be issued against people who have been found to be contempt of court or who have disobeyed court rulings . They are named after the 1952 case Hadkinson -v- Hadkinson in which a mother took her child to Australia without permission. She then appealed an order that she should return the child. It was argued that her appeal should not be heard because she was in contempt of court by not returning the child before she made her appeal.
The then Lord Justice Denning declared:
“I am of the opinion that the fact that a party to a cause has disobeyed an order of the Court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues it impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth or enforce the orders which it may make, then the Court may, in its discretion, refuse to hear him until that impediment is removed or good reason is shown why it should not be removed.”
The case concerned a teenage girl who had recently had her 18th birthday. She had unspecified difficulties which meant she lacked capacity to be participate in legal proceedings.
The girl, referred to as B in case reports, lived in a residential care home and had been, noted Judge Cardinal, “ subject to litigation for a good deal of her life”.
Her father, meanwhile, lived in Scotland and had breached multiple injunctions requiring him to stay away from his daughter, most recently in June 2012 when he met her at a train station. He was found guilty of contempt at a hearing he refused to attend the following September.
The court found that he was likely to cause his daughter distress by continuing to seek her out in defiance of the current injunction, and he was therefore sentenced to 12 months behind bars, a sentence he has not served as he continues to live in Scotland.
After B’s 18th birthday, the local authority applied to have a ruling on the B’s long term residence at the home, as well as a Hadkinson order preventing further inappropriate contact between the girl and her father.
At the Court of Protection, Judge Cardinal noted the father’s response to this application:
“The father opposes the Hadkinson order sought by the Local Authority today, but he goes further than that. He disputes his daughter’s lack of capacity; yet he has failed to file any evidence contradicting that…. He accuses the Local Authority of bad faith. He has filed a position statement, dated the 18th September, which does not address the issues before me, but rather appears to be mainly an attack by him on the Local Authority’s key social worker. He has also circulated a letter of the 17th March 2014, but that too does not deal with the position before me today at all, save that it says that he is considering a libel action against the Local Authority, which is not relevant and does not assist me. Perhaps more importantly, it says this, and I quote “I am not prepared to expose myself to possible imprisonment by travelling south to attend any hearings.” So his non-engagement in the litigation process continues.”
The judge described the application for a Hadkinson order within the Court of Protection, rather than the family courts, as “a novel point”. He considered a number of legal precedents relating to Hadkinson orders, noting a comment by Mr Justice Popplewell in the 2013 case of JSC BTA Bank -v- Mukhtar Ablyazov:
“A contender is to be deprived of the opportunity to seek to influence the Court’s decision-making process if he does not recognise the authority of the Court and is not willing to abide by its decisions.”
Judge Cardinal continued:
“That seems to me to be on all fours with this case. That is precisely the position here. It is therefore clear that a Court has the power to make a Hadkinson order affecting someone who does not obey its orders and who is in contempt, and it is plain to me too that it is appropriate to make such an order in this case.”
Hadkinson orders are in keeping with the European Convention on Human Rights, he found:
“Is a Hadkinson order Human Rights compliant in a case such as this? I am satisfied it is, because, first, this father has an opportunity to put his case, quite properly, if he chooses to subject himself to the Court’s jurisdiction. He is not being treated in any way unfairly for the purposes of Article 6; and second, there is no question in my mind that the Court, in coming to its decisions, irrespective of whether father is here or not, will seek to apply the appropriate respect for the family and private life of all parties pursuant to Article 8.”
He therefore made the following order:
“Unless [the father] attends at this court in person at each hearing in this application he is not permitted to do the following:
(a) file any evidence and/or any preliminary documentation setting out his position in respect of the applications before the Court at that hearing,
(b) advance a positive case through counsel, advocate, legal representative or other person on his behalf at that hearing in respect of the application of the Local Authority to determine the capacity of B to make decisions as to her residence, her contact with others and her care and her best interests in respect of these areas of decision-making,
(c) be heard through an advocate in court at that hearing, save for on an application to vary [change or cancel] the terms of this paragraph [ie the order].”
And so it was left up to the father in case to comply with the court orders, and the Hadkinson order would stay in place until he did.
Applying for a Hadkinson order is a serious matter, but if there is, for example, repeated contempt of court or non compliance with court orders, then this is one very effective, albeit draconian, way to fight fire with fire, assert the superiority of the court and ensure that the court process is not thwarted.
Photo by Mintguy via Wikipedia under a Creative Commons licence