Clarke, Re [2016] EWCOP 11

This case is an ongoing dispute between family members concerning Mrs Ann Clarke (‘P’). The substantive matter was heard by Mr Justice Peter Jackson in Re Clarke [2012] EWCOP 2256; Re Clarke [2012] EWCOP 2714; and Re Clarke [2012] EWCOP 2947.

The current application was made by one of P’s sons, Michael Clarke (‘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 she is in poor health.  MC had taken P from England and took her Thailand between September 2015 to February 2016 before returning P to live in Spain. 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, Ms Wilde and Kevin Clarke (‘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 prevent 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.

Discussion
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.

Read the full text of the judgment on Bailii