Report comment

What a tragic case. This is a somewhat oppressive judgment, albeit one clothed in apparently humane language.

I am uncomfortable with the exercise the judge was required to undertake. Is it not wrong to decide the merits of arguments that were not properly formulated or advanced, or to decide the weight of evidence that was not marshalled or presented, where all of these defects arise from the want of professional advice and representation, to which the Defendant was entitled as of right, but of which she could not avail herself?

It is also interesting to compare this to the Court of Appeal's ratio in Re MM [2017] EWCA Civ 34. That case also turned on the deliberate breach of orders, involving a Defendant who had removed a vulnerable, incapacitous man from the jurisdiction and failed to return him. The Court of Appeal decided that prison would serve no useful purpose.

"In this case, it is important to note, the court is not caving in at the first sign of obduracy. Ms Kirk remains seemingly determined on her course despite having been taken to prison and, indeed, despite having spent some seven weeks incarcerated in what must for her have been most unfamiliar and very unpleasant conditions. Is there any real reason to believe that a further dose of this medicine might induce compliance within the kind of time it might be appropriate, having regard to the principles in Barrell and Mahoney, to require her to serve? I very much doubt it. Further attempts at coercion are most unlikely to be successful. Pressing on as hitherto is likely to be an exercise in futility. In the circumstances the consent order marks out the appropriate way forward."

I have deep misgivings about the process and the sentence in this case. Who breaks a butterfly upon a wheel? Alas, it seems that we do.