Judge: Court of Appeal (Sir James Munby P, Black and McFarlane LJJ)
Citation:  EWCA Civ 1221
In September 2014 Devon County Council commenced proceedings in the CoP 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.
Her case came before the Court of Appeal which expressed its disquiet at what had happened. As McFarlane LJ noted:
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 did could not found an appeal:
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.