Tracking down the abducted ‘P’

The Court of Protection on occasion has to deal with those who are determined to stymie its jurisdiction. In Kirk v Devon County Council [2017] EWCA Civ 34, Sir James Munby, through gritted teeth, accepted that the end of the line had been reached in relation to a P who had been abducted to Portugal. In Re AB & Ors [2025] EWCOP 27 (T3), McKendrick J refused to accept that the end of the line had yet been reached in relation to a P abducted to Jamaica. His reasons for giving a detailed judgment setting out the background and the concerns relating to P were two-fold.

The first was that he remained:

33. […] concerned about AB’s welfare in Jamaica notwithstanding the fact the orders made by this court have led to her being located and seen by the Jamaican authorities. This judgment will therefore be sent to the A Police Force in the UK, the Jamaican Police and the consular team at the British High Commission in Kingston Jamaica. A County Council will impress upon those authorities that AB is very vulnerable and that there is an alarming history of safeguarding concerns in respect of AB. Furthermore, the authorities will be reminded that Mrs O had not authority to remove her from England and Wales and did so contrary to orders of this court. Mrs O has been served with orders of this court and she has continued to act in defiance of those orders.

The second was that:

34. […] there were steps that could have been taken to locate AB earlier, when it became clear Mrs O would not comply with the return orders. It may be helpful for practitioners in the Court of Protection to understand the steps that can be taken to locate missing persons. Such orders in the High Court are often used to locate missing children. This was made clear in HM and PM and KH[2010] EWHC 870 Fam– a decision of Munby LJ (as he then was). He said this at paragraphs 34 to 36:

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.

35. It may also be helpful to refer to Re S (Ex Parte Orders)[2001] 1 FLR 308 at page 320 and also London Borough of Hackney v A, B and C [2024] EWCOP 33(T3). I am satisfied that the Court of Protection can make such third party disclosure orders.

36. In addition to these powers, the power to compel persons to file evidence and attend court to provide sworn evidence is a useful tool, used sparingly, to assist to locate missing persons. It is frequently used in the Family Division to locate children. It took two directions to file witness statements and attend court to give sworn evidence (orders directed to Mr O and his daughter, YM) for the landline number to be produced to enable the Jamaican police to locate AB.

In relation to AB’s case, McKendrick J considered that this meant:

37. It follows therefore that the agreed position of the parties at the hearing before me in March 2025, that permission for these proceedings to be withdrawn should be given was, in my judgement, misconceived. Counsel for A County Council told me his instructions were to seek to permission to withdraw the proceedings albeit his client’s position was that it was in AB’s best interests to return to reside in England and Wales.

McKendrick J made clear that he had not overlooked the question of his jurisdiction sitting as a Court of Protection judge between March and July 2025.  As he noted at paragraph 38 “[a]s with children, so it is with vulnerable adults: habitual residence is key to jurisdiction.” Counsel for Mrs O had never (and McKendrick J considered rightly) submitted that the Court of Protection had no jurisdiction, although she had come close to submitting that AB was now habitually resident in Jamaica.  McKendrick J accepted that there was a “clear and arguable case that AB may have lost her habitual residence in England and Wales and at some stage since February 2023 she may have become habitually resident in Jamaica.”  He referred himself to the extensive review of the case-law relating to this issue in Re QD (Jurisdiction: Habitual Residence) [2019] EWCOP 56, before continuing:

40. I have not had to determine AB’s habitual residence. No party had submitted I have no jurisdiction. Mrs O has filed no evidence as to AB’s circumstances nor has she sought to explain or justify her decision to remove AB in February 2023. Mr O has not sought to file evidence in respect of AB’s situation in Jamaica for the purposes of submitting the factual evidence before the court now demonstrates AB is habitually resident in Jamaica. In any event, I would have been satisfied my limited orders made to locate AB fell very much within the jurisdiction set out by Holman J in Amina Al Jeffrey v Mohammed Al-Jeffrey (Vulnerable Adult: British Citizen) [2016] EWHC 2151 (Fam). Furthermore, even if she were habitually resident in Jamaica, I consider this court retained a residual jurisdiction in respect of the orders previously made when it was obvious this court had jurisdiction based on AB’ habitual residence, because the orders I made were related to, and ancillary to, the previous return orders. For these reasons, albeit there was no dispute, I have satisfied myself that there has been jurisdiction for me to make the orders between March and July 2025 to locate AB. If a form COP 9 is filed asking me to make a return order, I may need to pause to consider jurisdiction more fully.

In relation to further steps that could be taken to secure AB’s return to England & Wales, McKendrick noted:

41. I should also add that whether or not there is to be an application for contempt is one for the applicant and Official Solicitor. There appeared to be a reluctance to consider any form of contempt against Mrs O because it was felt to be lacking in utility because she is in Jamaica. However, directions and orders made in March 2025, clarified that Mrs O likely owns fifty percent of the family home. The possibility of confiscation of Mrs O’s interest in the family home pursuant to COP Rule 21.9 (1) if she were found to be in contempt of court, certainly appeared to encourage Mr O to cooperate.

42. It may well be that the combination of: (i) the DWP’s likely consideration of terminating AB and Mrs O’s benefits; (ii) and the potential for the parties to make clear to Mrs O that if she return to England and Wales with AB, they would not pursue contempt proceedings against her; and (iii) nor would they seek a costs orders pursuant to COP Rule 19.5 (1), will encourage Mrs O and AB to return. That is a matter for them.

McKendrick J therefore ordered a stay, with permission to the parties for file an application for a lift of the stay within the next 6 months, failing which the proceedings would stand dismissed with no order as to costs.

43. Notwithstanding the fact AB has not returned to this jurisdiction, I consider the order for a stay is appropriate. The applicant local authority have themselves met with Jamaican lawyers to consider an application there for a return order in that jurisdiction. They tell me they will continue to liaise with the UK police. For these reasons, having located AB and ever mindful of the need for this court to take a proportionate approach, I see only the very limited role, which I have described above, for this court going forward.

Comment

Paragraphs 34 to 36 of the judgment are particularly helpful in terms of outlining clearly the menu of options for seeking to identify and compel the return of missing persons. One observation, however, is that it is necessary to proceed with a little care in terms of enforcing orders. It is undoubtedly possible to attach a penal notice to an injunction; breach of such a notice will be contempt, and can be “punished by a fine, imprisonment, confiscation of assets or other punishment under the law” (see the definition of ‘penal notice’ in CPR r.21.2(2)). It is, however, not possible to attach a power of arrest directly to an order of the Court of Protection.  As HHJ Bellamy (sitting as a Deputy High Court Judge) noted in FD (Inherent Jurisdiction: Power of Arrest) [2016] EWHC 2358 (Fam), the High Court does not have the power under its inherent jurisdiction to attach a power of an arrest to an injunction; as the Court of Protection’s enforcement powers derive (via s.47) from the High Court’s powers, the Court of Protection equally does not have the power to attach a power of arrest directly (see also, albeit only in passing, paragraph 45 of this judgment of HHJ Mitchell from January 2025).

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.