The Court of Appeal recently expressed deep concern at the jailing of a woman who refused to comply with a welfare order in relation to a man she moved to Portugal. The Court of Protection team at 39 Essex Chambers reports.
In September 2014 Devon County Council commenced proceedings in the Court of Protection under the MCA 2005 with respect to MM, a man in his eighties who, it is agreed, suffers from dementia and lacks the mental capacity to make decisions about his own care and welfare. In 2013 MM signed a Power of Attorney appointing Mrs Kirk together with another individual as attorneys both for health and welfare and for property and affairs, under the MCA 2005.
At the time the CoP proceedings were commenced, MM had been moved by Mrs Kirk from his longstanding home in Devon to live with her in another part of England. Although MM has lived in England for very many years, he was, by birth, Portuguese, and originated from the island of Madeira, where some of his family members still live. Within the CoP proceedings a report was commissioned from an independent social worker on the question of MM’s future care and, in particular, whether it was in his interests to remain living with Mrs Kirk, or to return, albeit to a care home, in his home area in Devon where he had lived for the previous fifty years and where he had developed and maintained a large circle of friends. The independent social work report was produced on 20th April 2015. It recommended a return to Devon.
Within days Mrs Kirk removed MM from the jurisdiction of England and Wales, without any notice to the professionals in the case, and travelled with him to Portugal. MM had remained in Portugal since that time. Shortly after arrival he took up residence in a care home where he remained. Mrs Kirk subsequently returned to her home in England without him.
During the ensuing eighteen months various High Court Judges, sitting in the CoP, made orders designed to achieve the return of MM to England so that he might be placed in a care home in Devon. It appeared that the care home in Portugal will not release MM from their care without an express authority to do so from Mrs Kirk. The CoP orders were therefore directed at Mrs Kirk so as to require her to take such steps as were necessary to achieve MM’s return to this jurisdiction and, in later order, specifically directing her to sign the appropriate paperwork authorising the care home in Portugal to release him. She did not do so, even following a fully contested welfare hearing before Baker J in which he found that it was in his best interests to be returned to Devon, and contempt proceedings were issued against her.
Between the contempt proceedings being issued and being heard before Newton J, Mrs Kirk, acting as a litigant in person, had issued a notice of appeal in the Court of Appeal against the decision of Baker J, although she did not ask for a stay of Baker J’s order.
It was common ground before Newton J that Mrs Kirk had failed to comply with the order. Indeed, in the face of the court, she continued to refuse to sign the form of authority before Newton J at the hearing. He therefore had no option but to find contempt of court proved. As regards disposal, he noted that the options were limited, Mrs Kirk having little income and no assets; he therefore “reluctantly concluded that there now being no other way, it seems to me, of enforcing the court order; that I am left with no alternative but to pass a sentence of imprisonment, however much I have made it perfectly clear that I do not wish to do so.” He sentenced her to six months’ imprisonment, but gave her one last chance to sign the order within seven days. She did not do so, and was imprisoned.
In Devon CC v Kirk  EWCA Civ 1221 (Court of Appeal) (Sir James Munby P, Black and McFarlane LJJ) her case came before the Court of Appeal which expressed its disquiet at what had happened. As McFarlane LJ noted:
27. I am bound to record that I find the circumstances of this case to be of significant concern. The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of MM for whose welfare she is, as the judge found, genuinely concerned. The ultimate purpose of her incarceration is to achieve the removal of an 81-year-old gentleman, who has suffered from dementia for a number of years, from a care home in one country to a care home in Devon which is near his longstanding home and within a community where he is well known. Those stark facts, to my mind, plainly raise the question of whether the COP was justified, on the basis that it was in MM's best interests to do so, in making an order which placed Mrs Kirk in jeopardy of a prison sentence unless she complied with it. That aspect of the case, however, is a matter which goes to Mrs Kirk's application for permission to appeal the original order, to which I will turn in due course.
McFarlane LJ (with whom the other members of the Court of Appeal agreed) found that Newton J had been wrong to determine the committal application in circumstances where she was seeking permission to appeal the order of Baker J. He then granted permission to Mrs Kirk to appeal the order of Baker J on the basis that, whilst her simple disagreement with Baker J’s conclusions could not found an appeal:
33. Where Mrs Kirk may have an arguable appeal is in relation to the order that followed on from the overall welfare determination insofar as it made her subject to mandatory orders to sign documents which were backed up by a penal notice and an express warning of potential committal proceedings. It is certainly possible to argue that any determination of MM’s welfare should have included consideration of how any move from Portugal to Devon could be achieved. Where, as was apparently taken to be the case before Baker J, it is said that the move could only be secured by placing Mrs Kirk under threat of the sanction of imprisonment, it is arguable that the very question of whether Mrs Kirk should be put in that position and face the prospect of a prison sentence for non-compliance should have been addressed by the COP in the context of MM’s welfare. In short terms, that question might be ‘is the move to Devon still in MM’s best interests if it may only be achieved by sending to prison someone whose interests he could be expected to have at heart, had he the capacity?’
34. In addition, during the course of the oral hearing before this court, the issue of what alternative means there may have been to achieve MM's repatriation without having to require Mrs Kirk's signature was raised but not satisfactorily answered.
35. Neither of the above points were seemingly addressed by Baker J in the main welfare judgment which has now been transcribed. It is not clear whether the judge gave a short further judgment on the question of whether or not Mrs Kirk should be compelled, on pain of committal, to sign the documents or whether there was any other alternative method of achieving MM's move to Devon without directly involving Mrs Kirk. A transcript of any further judgment, if given, must now be obtained.
Sir James Munby P also noted – and deplored – the difficulties encountered by Mrs Kirk’s legal representatives in gaining access to her in prison.
The point identified by McFarlane LJ in granting Mrs Kirk permission to appeal the decision of Baker J is a very significant one. Albeit that the situation before the court was more extreme than some (in that P had been taken out of the country) the situation where it would only be possible to compel obedience with a welfare order by taking draconian steps against a family member/friend is far from uncommon, and poses particular difficulty where (as here) there are grounds to consider that P themselves may well not wish such steps to be taken. We will therefore watch carefully for, and report upon, the full appeal judgment in due course.
This article was written by the Court of Protection team at 39 Essex Chambers.