What now for deprivations of liberty?
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SPOTLIGHT |
The team at 39 Essex Street examine a recent ruling where an individual was sent to prison for breaches of orders made by the Court of Protection.
To the best of our knowledge, the case of SCC v JM & Ors (unreported, 31.8.12) is the first judgment in the public domain recording the sentencing of someone to prison for breaches of orders made by the Court of Protection (PM v KH and HM [2010] EWHC 2739 concerning breaches of orders made under the inherent jurisdiction).
The facts of the underlying case are not relevant to the contempt proceedings; suffice it to say that they related to the residence of JM, an elderly man suffering from Alzheimers and a degree of vascular dementia.
The conduct of one of JM’s children, WM, had given rise to substantial concern on the part of the Court during the course of the proceedings, albeit that HHJ Cardinal was at pains to point out (paragraph 2) that the way in which she had behaved in that litigation was in no way reflected in the judgment to which he came upon the committal application.
In 2011, injunctive relief had been granted by first a District Judge and then HHJ Cardinal:
Notwithstanding these injunctions, which had been served upon WM (who had attended nearly every hearing), WM took the following steps which HHJ Cardinal found to constitute contempt of court:
HHJ Cardinal found, perhaps not surprisingly, there had been a considerable number of breaches, and that WM had no intention, “unless restrained by a severe measure by this court, of obeying the orders herself” (paragraph 12). He also found that she had been seeking to evade service of the application for committal for contempt and in the circumstances considered it appropriate to proceed to sentence her in her absence. In light of the paucity of consideration by the Court of contempt applications, the relevant paragraphs of his judgment merit setting out in full:
“15. … I look at the terms of punishment. Miss Khalique has properly reminded me that the court’s purpose is not to express outrage, but simply to express the court’s concern as to breach of its orders and not in fact to punish unnecessarily, it is not a criminal court. I bear in mind the guidance given by the leading case of Hale v Tanner [[2000] 1 W.L.R. 2377], but in the circumstances it seems to me that there is no alternative other than to commit this lady to prison. I realise, of course, that in doing so I would be punishing JM to a degree because in some small way he still appreciates visits from his daughter, although she seems to ruin part or all of most of the visits and telephone calls, but the court cannot allow this situation to continue whereby she abuses LW, she abuses staff at AH Home and she defies the court order by bringing her father to court. She is causing him very considerable grief. In those circumstances it seems to be only right she should go to prison.
16. I have thought very carefully about the punishment. Last time I proposed imprisonment for five months. There have been other incidents, but I am satisfied that those incidents took place simply because she had not appreciated that I was going to send her to prison for breaches and she just continued her behaviour. I do not think it is a case for increasing the punishment so in the circumstances for each and every one of the breaches I will send her to prison for a further period of five months to be served concurrently. I am not sure I have said so clearly, but I make it clear that the telephone calls by WM have been not just to LW, but, of course, also to staff at AH Home and I want to make it clear that this order is made to protect them just as much as it is to protect staff of the local authority direct.”
Comment
It is, unfortunately, not uncommon for those before the Court of Protection to show themselves (by word or deed) reluctant to heed the declarations or decisions of the Court; this judgment is helpful confirmation that the standard principles applicable to contempt in civil proceedings will apply if and when their reluctance reaches the level of contempt.
This article was written by the Court of Protection team at 39 Essex Street.