Clarke, Re [2016] EWCOP 11 (22 February 2016)

Posted on Thursday, September 8th, 2016

Picture of Alan PickardThis case was an on-going dispute between family members concerning Mrs AC (‘P’) and the current application was made by one of P’s sons, MC to vary the order of 9th October 2012 to allow the sale of P’s property.

The Facts

P, 75 years, has been kept residing in Spain with MC, and was in poor health.  MC had taken P from England and took her Thailand for a few months in late 2015 before returning P to live in Spain in early 2016. This was against the wishes of P’s other children.

The hearing in October 2012 was to decide whether to keep P’s property for her to reside in as promoted by MC, or to sell the property in order to provide for P’s income needs as promoted by the other children, MW and KC.  The court gave an option for an application to be made for the property to be sold if P’s life was deteriorating as a result of lack of income.

In January 2013 MC was sentenced to 3 months imprisonment for contempt of court in respect of the orders made in 2012, for which he has not returned to serve his sentence or purge his contempt. Also in March 2015 a limited civil restraint order was made to stop MC from making further applications in civil proceedings.

Decision

The court refused to order a sale of the property, as it was impossible to assess the best interests of P due to MC’s impossible manner and behaviour. The court also refused Ms Wilde’s and KC’s request to inspect the property.

The relationship between the siblings was acrimonious and that although the siblings’ request to inspect the property may be sensible, the fact of the matter was MC had control over P and the benefits gained would cause more difficulties for P.

The court did say it would consider a sensible plan to raise monies and provide P with a steady rate of income.  

This is a difficult situation for the court and as the court felt that it was unlikely to be in P’s best interests to be kept out of England it can only assert control over which it has jurisdiction.

The full judgment can be read here.

Summary written by Alan Pickard

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