Judge: Hayden J
Citation:  EWHC B27 (Fam)
Summary: This judgment provides very useful guidance upon the requirements that must be followed in applications for committal to prison for contempt upon the basis of a breach of an order of the Court of Protection.
For present purposes, the facts can be summarised very briefly. CoP welfare proceedings were on foot concerning a woman identified as WAJ. A Leslie Whiting formed a relationship with WAJ. During the course of the proceedings he was made a Respondent. Social Services were concerned about the dynamic of this relationship. They were worried, too, about a conviction recorded against him in 2009 for a sexual offence relating to exploitation of a vulnerable adult. Although Mr Whiting declined to participate in the proceedings, his role in WAJ’s life fell under scrutiny and was the subject of detailed professional evaluation. The conclusion that was reached was that his influence was essentially malign.
On 21st August 2012 an injunction was made by District Judge Rogers, which was designed to protect WAJ and to extricate Leslie Whiting from her life. The terms of that order were as follows:
“(1) Leslie Whiting should be forbidden by himself or acting jointly with any other person from: (a) allowing or threatening any unlawful violence against the first respondent (WAJ); (b) coming within 100 metres of a property in which it was thought she was living at the time, or any other property that he became aware that she might be visiting; (c) communicating with the first respondent, whether by letter, telephone, text message or other means of communication; (d) threatening the first respondent; (e) instructing or encouraging any other person to do anything which is forbidden by the terms of the order.”
In the autumn of 2012, and certainly by December, the Adult Services in Peterborough believed that they had grounds upon which to establish that Leslie Whiting had breached the terms of the district judge’s injunction. An application for committal was issued in January 2013. Repeated procedural irregularities led to repeated adjournments, until – finally – the matter was transferred to be heard before a High Court Judge, Hayden J, and heard in December 2013.
Hayden J prefaced his analysis of the breaches alleged against Mr Whiting by a number of important remarks relating to the committal process. Firstly, he endorsed District Judge Eldergill’s referral to the relevant statutory provisions and guidance in the form of: “the Court of Protection Rules 2007, and in particular to Part 21 and Rule 9, Court of Protection Practice Direction PD21A; committal for contempt of court (practice guidance)  1 WLR 1316, 2013 EWHC B4 (COP); committal for contempt of court (supplemental practice guidance)  EWCH B7 (COP); Part 81 of the CPR and the relevant case law.” Hayden J then went on to highlight:
“12. […] some crucial features of the committal process:
(1). the procedure has an essentially criminal law complexion. That is to say, contempt of court must be proved to the criminal standard, i.e. so that the judge is sure. The burden of proof rests throughout on the applicant (see: Mubarak v Mubarak  1 FLR 698);
(2). contempt of court involves a deliberate contumelious disobedience to the court (see: Re: A (A Child)  EWCA Civ 1138);
(3). it is not enough to suspect recalcitrance; it must be proved (see: London Borough of Southwark v B  2 FLR 559);
(4). committal is not the automatic consequence of a contempt, though the options before the court are limited – for example: (a) do nothing; (b) adjourn where appropriate; (c) levy a fine; (d) sequester assets; (e) where relevant, make orders under the Mental Health Act (see: Jamie Malcolm Hale v Rachel Tanner  2 FLR 879);
(5). the objectives of the application are usually dual, i.e. to punish for the breach and to ensure future compliance;
(6). bearing in mind the dual purpose of many committal proceedings, they should be brought expeditiously, whilst primary evidence is available and the incidents are fresh in the mind of the relevant witness. This is particularly important in the Court of Protection where there may be reliance on a vulnerable witness and where capacity might have to be assessed.
It follows, therefore, that where injunctive orders are made, they should be clear, un-ambivalent and drafted with care. In my judgment, simplicity should be the guide. Similarly, where breaches are alleged, they should be particularised with care, both so that the alleged contemnor knows exactly what, where, when and how it is contended that he is in breach, so as to be able to marshal his defence, but also to help the applicant focus on what evidence is likely to be required to establish the breach to the requisite standard of proof.”
Hayden J then analysed the four breaches, each of which were supported by an affidavit and oral evidence of a social worker. He was unimpressed by the affidavit and the supporting evidence: “[t]here were fundamental difficulties with the affidavit, with the chronology and indeed the oral evidence. Timescales and dates were vague. There was heavy reliance on hearsay evidence from a variety of sources. There was a dearth of primary material – for example, mobile phone records – even though it appears they may have been capable of being obtained. The passage of time also meant that the social worker’s evidence was characterised by a lack of detail, but so too, it must be said, the affidavit and the chronology were decidedly sparse” (paragraph 15). He then went on to find that none but the last were made out, before concluding with the following remarks of general importance:
“14. The commitment and sincerity of all the professionals working in this area is beyond any doubt. It has been on display in this case. What is required, however, is an intellectually rigorous relationship between the lawyers and the social workers in every aspect of the Court of Protection, of course, but particularly on an application of this kind. The lawyers preparing the case must realise that establishing breaches to the criminal standard of proof requires forensic precision and the careful identification of evidence to support each of the particulars of the breach. It seems to me that nobody has hitherto engaged directly in that exercise… The process requires the lawyer and the social worker to work closely together to look at the order, to identify the breach and to marshal the material as if proving the constituent parts on a count on an indictment. Nothing less will do where the liberty of the individual is at stake.
15. The Court of Protection is, as the title makes clear, here to protect the vulnerable. The breadth of its work is very wide; its injunctive powers may well not yet have been fully utilised, but it is important, as they develop, that they are deployed with forensic rigour and, where possible, as here, subject to public scrutiny. Collating evidence when working with those who, in certain areas of their lives, may lack capacity is inevitably challenging…”
Hayden J declined to take any action upon the one breach that had been established, a year having passed and there having been no subsequent allegations.
Comment: Hayden J went out of his way at the outset of his judgment to highlight what he considered to be the good practice of Peterborough Social Services in their work with WAJ in developing trusting relationships with social workers to assist in protecting her from men who might be dangerous to her, as well as equipping her to protect herself as best she could. In outlining the criticisms set out above, he was at pains to note that was seeking to be constructive and to restate guidance.
The judgment, indeed, stands as extremely helpful guidance to those considering bringing applications to commit for contempt of court, identifying in one place all the key statutory provisions and the core principles derived from the case-law. In its emphasis upon the importance of close working between lawyers and social workers to ensure forensic analysis is brought to bear at an early stage, it also sits as a companion piece with the costs judgment of District Judge Eldergill in A Local Authority v HS & Ors  EWHC 2410 (COP) (for Westlaw subscribers, see also Alex’s article in the Encyclopaedia of Local Government Law Bulletin on ‘Safeguarding and the Court of Protection’ (E.L.G.L.B. 2013, Nov, 10-12).
One final point is that it appears that Hayden J – politely – questioned whether it was necessary for the matter to have been transferred to a High Court judge. It appears that this took place because it was thought that the office of the Tipstaff might be required. As Hayden J noted (at paragraph 11): “[t]hat is, of course, concerned with the apparatus of enforcement but it is perhaps important to note that section 47(1) of the Mental Capacity Act 2005, which relates to the general powers and effect of orders et cetera made in the Court of Protection provides: ‘(1) The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.’” We would respectfully suggest that s.47(1) cloaks all judges sitting in the Court of Protection with the same powers as a High Court judge when it comes to matters relating to the exercise of its jurisdiction, including – in an appropriate case – committal for contempt. This means, in turn, that there would be no need to transfer a case to the High Court solely for purposes of a High Court judge considering the application for committal (indeed, we note that in the case of Wanda Maddocks, the only other case relating to contempt to have been publicised, the judge considering the matter was a Circuit Judge – HHJ Cardinal).
Specifically in relation to the Tipstaff, however, the position is not entirely clear, because the Tipstaff serves as the enforcement officer for orders made in the High Court, rather than the Court of Protection. It is clear that the Tipstaff can act so as to enforce orders made under the inherent jurisdiction in relation to incapacitated adults: see PM v KH and HM  EWHC 3279 (Fam). There is an argument that by virtue of s.47(1) MCA 2005, an order of the Court of Protection stands as if it were an order of the High Court and therefore falls to be enforced by the Tipstaff. Absent judicial clarification, however, we suspect, though, that in any case where it is seriously envisaged that the office of the Tipstaff will be required, then prudence should dictate that the committal proceedings should be transferred to a High Court judge.