P v P (Contempt of Court: Mental Capacity)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE JUDGE,LORD JUSTICE SEDLEY |
| Judgment Date | 14 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0714-10 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FAFMF 1999/0348/2 |
| Date | 14 July 1999 |
[1999] EWCA Civ J0714-10
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
EASTBOURNE DISTRICT REGISTRY
(MRS JUSTICE HOGG)
Royal Courts of Justice
Strand
London WC2
Lady Justice Butler-sloss
Lord Justice Judge
Lord Justice Sedley
FAFMF 1999/0348/2
MR P NICOL-GENT (Instructed by Hillman Smart & Spicer, East Sussex, BN21 4RB) appeared on behalf of the Appellant
MR D SHARPE & (Re 14 July MR B MCALINDEN) (Instructed by Messrs Lawson Lewis, East Sussex, BN21 4PP) appeared on behalf of the Respondent
This is an appeal by a husband with the leave of the Judge, Hogg J, from the refusal on 25 February 1999 to discharge an injunction and power of arrest made on 2 September 1998 by Bracewell J.
It is a very sad case and I would like to say in this judgment, as I said during the hearing, my thanks to counsel Mr Nicol-Gent and the solicitor for this husband for the enormous care and concern that they have shown for their client who suffers from severe disabilities. The husband suffers from Usher's Syndrome. He is deaf and dumb. He has deteriorating eyesight so that he has now little more than tunnel vision. He has however an average IQ.
In 1978 he was married and had three children. The wife and two of the three children are deaf. In 1997 they parted and there were allegations of violence said to have been perpetrated by the husband on the wife. An injunction was granted to the wife. She and the children and her new partner remain in the former matrimonial home. The husband was found accommodation nearby, unfortunately only about half a mile away. There were problems about rehousing him. There have been divorce proceedings. There has now been a decree nisi and there may indeed have been a decree absolute. There were ancillary proceedings which have now been resolved. There is at long last after an enormous amount of effort both by counsel and solicitors a genuine attempt now by the housing authority to rehouse this husband in suitable accommodation and much further away from the wife.
I continue to call them husband and wife despite the fact that there has now been a divorce.
Last year the husband was in breach of various injunctions and a power of arrest which was activated on numerous occasions. I think he was in breach something like 29 times. This was all as a result of the husband returning to the former matrimonial home. There were frequent appearances in the local county court before circuit judges and latterly in the High Court. Before Hogg J on 25 February there were two applications, one by the husband to discharge the injunction and the other by the wife to commit the husband for breach of the injunction. The facts of the breach were not in dispute. The judge said at page 4 of her judgment:
"The problem simply is the level of the husband's understanding as to the jurisdiction of this court, and understanding the nature of the order which has been made against him, and whether indeed it should remain."
The judge heard evidence from two experts, a consultant psychiatrist, Dr Monteiro, and a psychotherapist, Miss O'Rourke, both specialists in deafness. She heard from them both by oral evidence and their reports. She made findings which I think it appropriate in this case to read in some detail.
His IQ is potentially average, but the effect of his disabilities and ability to understand is, and has been, limited by his own life experiences to which he himself can relate. He does have concepts of right and wrong in the simple straightforward way that it would be wrong for him to assault somebody or to steal. It is clear that he knows that he has a piece of paper from the court which says he should not go to the former matrimonial home. That, of course, is the order.
Dr Monteiro told me that he knows he has this piece of paper, but he goes to the home at times of anxiety when his immediate needs, as he perceives them, take over, and he feels that his needs require him to go to the home for comfort, for solace, or to be able to communicate with somebody and that his needs would there be met.
The doctor was very clear, as indeed was Mrs O'Rourke, that in going to No. he went on a voluntary basis. There was nothing forcing him and no one else forced him to go. He has an awareness of the injunction, but he goes to the home because his thinking system and need override his knowledge of that injunction. The doctor also told me that the husband understands that he has been arrested on occasions when he goes to No. 23 and that on occasions the consequences of his going to No. 23 means that he ends up in prison following the court procedures. In effect he understands that there is an implication and a warning from the court that if the order is broken he could go to prison."
Then the judge dealt with the evidence of Mrs O'Rourke and her evidence supported that of the consultant psychiatrist.
"The experts accept that the husband probably does not understand the legal system, particularly the civil jurisdiction to commit, because of the difficulty there is in conveying difficult concepts to the husband and because of his very own way, a very rigid way, of thinking."
She then made these findings:
"I find that he knew he should not go to the home. I find that the penal notice has been explained to him and that it was explained in a way that he would become aware that he would be liable to go to prison if he went to No. 23. When he has been to No. 23, since the injunctions, it was a conscious and voluntary act and that when he goes he had not forgotten the order, but was overwhelmed by events or stresses in his life."
I stress that the husband in this case is not suffering from a mental health difficulty.
Having made those findings the judge then exercised her discretion whether to continue the injunction and balanced the interests of the husband in that prison was not a suitable place for him to go with the nuisance effect and the need to protect the wife and children. She extended the injunction for six months and continued a power of arrest. In respect of the application by the wife to commit him, the judge held that because he had already spent several weeks in prison, partly for medical investigation, it was not necessary to make a further order.
The appeal by the husband is based upon the degree of lack of understanding that he is said to have. It is alleged that the judge did not reflect the evidence of the experts that the husband was unable to understand the jurisdiction of the court and the concept of civil offence of contempt. We looked with some care at the transcript of evidence given by both experts and the question is whether it is necessary to understand the jurisdiction of the court or whether it is sufficient to understand the basics of an order, what it prohibits and the consequences if disobeyed. This problem has only infrequently so far come before the appellate courts. The first occasion this particular problem arose was in a decision of this court in Wookey v Wookey [1991] 3 All ER 165 and, secondly, in a case called Harris v Harris to be found in a transcript of the Court of Appeal transcripts on 22 April 1999. In each case, Wookey and Harris, the husband suffered from mental disability. Mr Wookey was 70 years old and suffering from dementia. He was considered by the consultant psychiatrist to be incapable within the M'Naghten Rules. In the judgment that I gave at page 370 I set out:
"I shall begin, however, by stating some well-established, general propositions in relation to injunctions before turning to the special problems raised by these two appeals. The grant of an injunction is a discretionary remedy derived from the equitable jurisdiction which acts in personam and only against those who are amenable to its jurisdiction; nor will it act in vain by granting an injunction which is idle and ineffectual. An injunction should not, therefore, be granted to impose an obligation to do something which is impossible or cannot be enforced. The injunction must serve a useful purpose for the person seeking the relief and there must be a real possibility that the order, if made, will be enforceable by the process in personam. However, the courts expert and assume that their orders will be obeyed and will not normally refuse an injunction because of the respondent's likely disobedience to the order."
Then at page 372 I said:
"Mr Wookey's case may be unusually clear since there is psychiatric evidence available. There are other case where the situation is less clear, particularly at the interlocutory stage. The approach to an application for an injunction may well differ at different stages of the proceedings and may depend upon the state of knowledge available to the judge. If an application is to be sought for an injunction against a respondent whose behaviour raises the real suspicion of mental incapacity, certain questions should be asked and steps considered."
Then I set out some guidelines as to what should happen in a case like this. If I may say, there is no question but that counsel and solicitors in this case took great care to go through the right procedures.
In the Harris case, Mr Harris was 83 and...
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