Judges criticise Court of Protection over jailing of woman for contempt

Appeal judges have criticised the Court of Protection over a case in which a woman was jailed for contempt.

The appeal was heard by President of the Family Division Sir James Munby, Lady Justice Black and Lord Justice McFarlane.

It arose after a man in his eighties who suffered from dementia was removed from the jurisdiction to Madeira, where he was from, despite a court order that he should be in care in Devon, where he had lived for 50 years.

Teresa Kirk had considered it in his best interest to be in Portugal and had taken him there.

She refused a court instruction to sign an authorisation for his return to Devon after the county council brought proceedings in the Court of Protection under the Mental Capacity Act 2005

In Devon County Council v Teresa Kirk, judges ordered Ms Kirk’s release from prison for contempt and voiced concern about several aspects to the case.

Mrs Kirk had been jailed for six months for refusing to sign the authorisation.

She had lodged an appeal but had omitted to tick the box showing she applied for a stay of the order against her and remained in jail for a month until LSDA Solicitors intervened pro bono.

It prepared a draft appeal which was sent to HMP Bronzefield but her solicitor was turned away when he tried to visit Mrs Kirk “because the officer in charge of legal visits was on leave that week”.

The visit took place only after the solicitor secured a letter from the Queen's Bench requiring the prison governor to appear in court unless the visit was permitted.

McFarlane J said: “If (and I stress 'if') the account of events that we have been given is broadly correct, then it is a matter of great concern that the draft Notice of Appeal and other documents initially transmitted to the prison by [the solicitor] were not passed on to Mrs Kirk and, obviously, that he was refused admission to visit her.”

He went on: “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.”

He went on to note it was “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…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”.

The judges said the Court of Protection was “in error in proceeding with the application for committal without further clarification as to the proposed appeal” and “the absence of an application for a stay of the order, where it is almost certain that a stay would have been granted pending receipt of the transcript of [original hearing judge] Baker J's judgment, should not have been taken as justification for proceeding with the committal application”.

A Devon County Council spokesman said: “The Court of Appeal refused permission for Mrs Kirk to appeal the decision of the High Court that it was in the best interests of MM to be returned to England.

“The court instead expressed concerns about the method of enforcement that was ultimately used by the High Court after Mrs Kirk refused to assist with the return of MM.

“Their lordships questioned whether it continued to be in the best interests of MM to return to England if such a return would potentially entail the imprisonment of Mrs Kirk. It is important to stress that any comments were made purely in relation to permission to appeal and no final decision has been taken on this issue.”

The spokesman said that since the High Court has no jurisdiction in Portugal the threat of imprisonment was used as a last resort to persuade Mrs Kirk to assist with MM’s return.

“It was always hoped she would relent, however, she steadfastly refused to assist and was ultimately sent to prison as a consequence,” he said.

“We have only ever sought to act in the best interests of MM and we remain disappointed that he has still not been able to return to his home, to his friends and the place he chose to live for most of his life.”

Mark Smulian