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England and Wales Court of Protection Decisions

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Cite as: [2016] EWCOP 42

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Neutral Citation Number: [2016] EWCOP 42
No. COP12558423


Royal Courts of Justice
18th August 2016

B e f o r e :

In Open Court


Devon County Council Applicant
- and -




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MR. A. BAGCHI QC (instructed by the Local Authority) appeared on behalf of the Applicant.
MR. J. GIFFORD HEAD (instructed by Begum & Co.) appeared on behalf of Mrs. T. Kirk.
MS. V. BUTLER-COLE (instructed by Irwin Mitchell) appeared on behalf of the Respondent.



Crown Copyright ©


  1. This is an application made by a Local Authority for committal for contempt of court, pursuant to notice issued on 13 June 2016. There is a second notice issued on 4 August 2016, as foreshadowed in the statement of 1 August, in relation to other documents. I do not deal with that today.
  2. The County Council seeks the committal of Mrs. Kirk for failing to comply with para.7 of the order of Baker J of 20 June 2016.
  3. MM is an 80 year old man, born originally in Madeira, but living in the South West for some 50 years or more. He had a large circle of friends, as the papers disclose, lived on his own and had a cat of whom he was exceptionally fond. Very sadly, he suffered from vascular dementia. He did not have the capacity to make decisions about his residence and care. Final orders were made concerning his capacity by Judge Hilder in April 2015.
  4. The backdrop to this application is a long-running case in the Court of Protection concerning MM. It started in 2014, after Mrs. Kirk removed him from his home to hers in Sussex. The matter came to the High Court once it became apparent that MM had been removed from the jurisdiction and taken to Portugal. That was in April 2015. It appears that those actions followed a report from an independent social worker which recommended that it was in MM's best interests to live in a care home in the South West, where he had previously lived, rather than in Sussex.
  5. Orders were made in this court by Pauffley J that he should be returned to this jurisdiction by 30 June 2015, now well over a year ago. He remains in Portugal. Committal proceedings were commenced again MM on 10 July 2015, but they have not been determined and, as far as I know, remain outstanding and adjourned. Further orders were made in 2015 that MM should return to the jurisdiction (e.g., Mostyn J on 18 September 2015 ordered that he should be brought back to this jurisdiction as soon as he was medically fit to travel). None of those subsequent orders have been complied with either and it appears that he was placed in a care home by Mrs Kirk in Portugal from September 2015, after he had been shortly hospitalised the previous month.
  6. The most recent chapter began this year, when the matter came before Baker J. He obviously wanted to know about MM's current circumstances and ordered a fresh investigation into his welfare. Comprehensive evidence was produced in relation to his care in Portugal and, on 10 June 2016, the court again determined that it was in MM's best interests to live in a residential care home in this country, in the South West.
  7. Subsequently, the case was adjourned to enable the Court to make a fuller order on 20 June 2016. I should highlight some passages of that order. There is a penal notice attached to the order against Teresa Kirk which expressly reads:
  8. "Take notice that if you disobey paragraphs 7 or 8 of this order you may be held to be in contempt and may be imprisoned, fined or have your assets seized. You should seek legal advice in relation to this order and the availability of legal aid should committal proceedings be applied for".

  9. There is a recital to the order at paras.5 and 6:
  10. "The court notes that to date Mrs. Kirk has refused to provide the authority to the care home that will facilitate the release of MM into the care of the County Council".

  11. Para.6:
  12. "At the hearing of 20 June 2016, Mrs. Kirk refused to sign documentation in accordance with paragraph 7 of the order".

  13. Para.7 of the recital reads:
  14. "The court warned Mrs. Kirk that if she fails to sign the documentation in accordance with paragraph 7 of this order below she will be in contempt of court and could be punished for contempt by imprisonment or a fine".

  15. The order records that the court informed Mrs. Kirk (at para.12) that, if she wished to appeal to the Court of Appeal against any of the orders made today, she has 21 days to file a notice of appeal but, unless and until the orders made today are stayed by the Court of Appeal, they remain in force and should be obeyed in full.
  16. The court went on to make declarations. Firstly, that MM lacked capacity. Secondly, that it was in his best interests to live in England, in the area of the South West. Thirdly, that it was not in his best interests to continue to reside at the care home in Portugal; and further ordered at para.7 that, no later than 4pm on 27 June 2016, Mrs. Kirk shall provide to the Local Authority a signed copy of the written declaration of authority appended to this order and, having signed the said document, shall not thereafter take any steps or measures to withdraw or countermand such authority, whether by herself or by instructing or encouraging any other person to do so. Permission was given at para.18 to serve this order on Mrs Kirk by email.
  17. The short point about that provision in the order is that it provided for Mrs. Kirk to sign the written declaration of authority so that MM could be released to the local authority. The order had a penal notice attached to it, the recitals are very clear. Mrs. Kirk was present in court. It was self-evident and overwhelmingly obvious that Baker J explained to her precisely the meaning and terms of the order. It was not in any way complicated; there was no room for misunderstanding. That order was subsequently served on her formally by email on 27 June 2016 at 9.33.
  18. The order has not been complied with; the authority has not been signed by Mrs. Kirk. A significant number of discussions have taken place (on at least three occasions, for example face to face with representatives from the Official Solicitor's Office and a number of telephone discussions too) during which Mrs. Kirk made it abundantly and unequivocally clear that she had no intention of signing the authority, and would not do so because of her strongly held beliefs that the court was wrong, and she was right.
  19. I understand that she has now issued an application for permission to appeal on 13 July 2016. I have not seen the appeal, but I understand from other documents and what I have been told (e.g., the notice of application dated 15 August from the new solicitors) that that is effectively on a merits basis. She argues a number of points in the application. I understand that is what she will be submitting to the Court of Appeal. That is to say, that Baker J exercised his discretion wrongly.
  20. The appeal has obviously not been determined and no stay has been sought. Therefore, as Mrs. Kirk was expressly told on 20 June 2016, notwithstanding any application she may make to the Court of Appeal, unless the order was stayed pending determination - and it has not been - the order must be complied with.
  21. So far as the law is concerned, I have regard to MASM v MMAM [2015] EWCOP 3, I have in mind the helpful checklist of Theis J, which appears in Re.A [2016] EWCA Civ 173.
  22. "1. Firstly, there should be complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is, contempt in the face of the court or breach of an order.

    2. Prior to the hearing, the alleged contempt should be set out clearly in a document or application that complies with the rules and which the person accused of contempt has been served with.

    3. If the alleged contempt is founded on breach of a previous court order, the person accused had been served with the order and that it contained a penal notice in the required form and place in the order.

    4. Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.

    5. Whether the person accused of contempt has been advised of the right to remain silent.

    6. If the person accused of contempt chooses to go against when they were warned against self- recrimination.

    7. The need to ensure that, in order to find the breach proved, the evidence must meet the criminal standard of proof of being sure that the breach is established. Any committal order made needs to set out what the findings are that establish the contempt of court which are the foundation of the court's decision regarding any committal order".

  23. The position this morning is that, at the commencement of the hearing, I indicated to Mr. Gifford Head that it appeared, not only were those requirements satisfied, but it seemed that Mrs. Kirk was in breach of the order, as she acknowledges. I adjourned and invited Mrs. Kirk to reconsider her position, especially in the light of what she contends in her application (that even if she did comply with the order and sign the consent, it would not effect MM's release because there is now a large, outstanding bill.
  24. After due consideration, he asked for the Court to reconvene. In the face of the court, through counsel, Mrs. Kirk accepted that she was in breach of the order and I was invited to proceed to sentence.
  25. I am satisfied and sure that the order of 20 June 2016 was (a) made in the presence of Mrs. Kirk and (b) was served upon her. I am satisfied and sure that the documents that were served upon her set out the breach fully. I am satisfied that she has been properly represented throughout. Indeed, the hearing before Mostyn J earlier this month was adjourned for that express purpose, there being some difficulty, I understand, about either legal aid or her representation.
  26. I apply the criminal standard to the only breach with which I am concerned, which is as set out in the order. I am entirely satisfied and sure - indeed, it is accepted in the face of the court - that Mrs. Kirk has not provided the written declaration of authority which was appended to the order, she has not signed it and apparently continues to take the view that she will not do so. Even today she refuses to do so. That is very, very regrettable.
  27. I proceed separately to sentence. I have listened with care to the mitigation put forward by Mr. Gifford Head. Mrs. Kirk is 71. She is of previous good character. She is a retired lady of limited means and her assets and savings have been depleted in the pursuit of protecting the interests of MM as she sees it and in this litigation. I acknowledge that she has deeply held, sincere beliefs as to the best interests of MM and is genuinely concerned about his welfare.
  28. The problem, inevitably, is when a court is asked to make a decision, there will be two - sometimes more - solutions. Baker J has determined the issues, his determinations remain extant. Inevitably therefore it follows, as it will in almost every court hearing, that at least one person in court is going to disagree sometimes, fundamentally and strongly, with the decision of the court. That does not mean that they then can simply be permitted to proceed as though the order does not exist; it goes to the very root of our judicial system.
  29. In this case, the court has made a decision based upon the evidence that decision stands until either affected by a proper re-determination, or by the Court of Appeal, neither of which has occurred.
  30. I take very much into account that, albeit at the last moment, Mrs. Kirk admits the breach and, in so far as I can, I make full allowance for that. She is, it is said, entitled to some credit, some discount for accepting in the face of the court the breach her position remains unaltered, and it might be therefore by some to be more akin to open defiance, she says she has no intention of signing it. If it is mitigation, I take it into account.
  31. The short point is what I should do. There has been a long period when Mrs. Kirk has successfully frustrated, by one means or another, the orders of the court. I only take into account what has occurred in relation to the breach of this order and this provision of the order; nothing else.
  32. The maximum sentence is one of two years' imprisonment. The options are limited. Mrs Kirk has little income and no assets. I have 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.
  33. Taking all those factors into account and having regard to the sentencing authorities, I shall pass a sentence of six months' imprisonment. However, I shall suspend the warrant for a period of seven days only to give Mrs Kirk one last chance to comply; I urge her to do so. If she changes her mind and signs the authority within seven days, the warrant will not be executed and I shall suspend the sentence for a period of 12 months. If she does not she will go to prison. If Mrs Kirk subsequently complies with the order, the matter should be immediately restored on an application to purge her contempt. What happens next is in Mrs Kirk's hands.

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