Devon County Council v Teresa Kirk [2016] EWCA Civ 1221, Sir James Munby P, Black , McFarlane LJJ, 5 December 2016
Devon County Council v Teresa Kirk [2016] EWCA Civ 1221, Sir James Munby P, Black , McFarlane LJJ, 5 December 2016
Mrs Kirk’s appeal against the order of Newton J committing her to six months’ imprisonment was allowed, and she was released from prison. (See our case-note of 30 October 2016 for a summary of the decision of Newton J.)
The background was that in 2013 Mrs Kirk was appointed attorney for the health and welfare and property and affairs for MM, a gentleman in his eighties, who suffers from dementia and lacks capacity to make decisions about his care and welfare. Mrs Kirk is in her seventies.
In September 2014 the local authority commenced proceedings in the Court of Protection in respect of MM. Mrs Kirk had moved MM from a care home in Devon to her home in Sussex. MM had lived in the Devon area for many years, although was Portuguese by birth. A report from an Independent Social Worker [ISW] recommended that it was in MM’s best interests to live in the care home in Devon rather than remaining in Sussex. Mrs Kirk, without consultation with professionals, moved MM to a care home in Portugal.
A number of hearings resulted in orders that MM should be returned to the jurisdiction and Mrs Kirk should sign the relevant authority to permit this. Mrs Kirk did not comply with the orders.
In 2016 Baker J ordered a further ISW report which again concluded that MM should return to the care home in Devon. In June 2016 Baker J attached a penal notice to an order that Mrs Kirk should sign the authority releasing MM from the care home in Portugal. Mrs Kirk did not sign the authority.
Mrs Kirk issued an application for permission to appeal the welfare decision of Baker J but did not apply for a stay.
In August 2016 the local authority issued contempt of court proceedings and Newton J sentenced Mrs Kirk to 6 months’ imprisonment. suspending the warrant for 7 days to allow her a last opportunity to comply.
She did not comply and was arrested on 26 September 2016 and imprisoned until released by the Court of Appeal on 8 November 2016
Allowing her appeal against the order for her committal to prison, the Court of Appeal held that the judge had erred in proceeding with the committal when Mrs Kirk’s application for permission to appeal against the substantive welfare order was outstanding. If a stay had been applied for it would almost certainly have been granted , at least until a transcript of the judgment of Baker J had been obtained. McFarlane LJ held,
- In the circumstances of the present case, where a party was facing the likelihood of a prison sentence for contempt, but where that party, whom the court accepts had genuine and sincere objections to the welfare determination that had been made, had issued an application for permission to appeal that welfare determination, it was simply premature for the judge to press on with the committal application.
On Mrs Kirk’s application for permission to appeal against the substantive decision in relation to MM’s welfare, the Court of Appeal granted permission to appeal against the mandatory orders that were made against Mrs Kirk on the grounds that consideration should have been given to how any move from Portugal to Devon could be achieved without placing Mrs Kirk under the threat of the sanction of imprisonment.
The question identified, in the context of MM’s welfare, was '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?' [paragraph 33]. In addition, the issue of what alternative means there may have been to achieve MM’s repatriation without having to require Mrs K’s signature may not have been addressed.
The President added reminders that the unjustified stopping of a communication between a prisioner and his solicitor is capable of amount to a contenmpt of court and that in respect of committal proceedings the court may order criminal public funding [paragraphs 51- 52].
The full judgment is available: Devon County Council v Teresa Kirk [2016] EWCA Civ 1221, Sir James Munby P, Black , McFarlane LJJ, 5 December 2016
