Devon County Council v Teresa Kirk
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lady Justice Black,The President of the Family Division |
| Judgment Date | 05 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1221 |
| Docket Number | Case No: B4/2016/4035 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 December 2016 |
[2016] EWCA Civ 1221
THE PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Lord Justice McFarlane
Case No: B4/2016/4035
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, COURT OF PROTECTION
Mr Justice Newton
COP12558423
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Colin Challenger (instructed by LSGA Solicitors from 21 October 2016) for the Appellant
Miss Louise MacLynn (instructed by Devon County Council) for the first respondent local authority
Miss Fenella Morris QC (instructed by the Irwin Mitchell) for the second respondent MM by his litigation friend, the Official Solicitor
Hearing date: 8 th November 2016
Approved Judgment
By a Notice of Appeal dated 27 th October 2016 Teresa Kirk appeals against the imposition of a six month prison sentence for contempt of court. This court heard the full appeal on 8 th November 2016. At the conclusion of the appeal hearing we announced our decision which was that the appeal was allowed with the effect that Teresa Kirk should be released immediately from prison. This judgment now records my reasons for supporting that outcome.
Background
In September 2014 Devon County Council commenced proceedings in the Court of Protection ("COP") under the Mental Capacity Act 2005 ("MCA 2005") with respect to MM, a gentleman 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 that 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 is, by birth, Portuguese, and originates 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 20 th 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 has remained in Portugal since that time. Shortly after arrival he took up residence in a care home where he remains. Mrs Kirk subsequently returned to her home in England without him.
During the ensuing eighteen months various High Court Judges, sitting in the Court of Protection, have made orders designed to achieve the return of MM to England so that he might be placed in a care home in Devon. This court was told, and for present purposes we have assumed, that the care home in Portugal will not release MM from their care without an express authority to do so from Mrs Kirk. The Court of Protection orders have therefore been directed at Mrs Kirk so as to require her to take such steps as are necessary to achieve MM's return to this jurisdiction and, so far as recent orders are concerned, specifically directing her to sign the appropriate paperwork authorising the care home in Portugal to release him.
The orders made are as follows:
a) On 4 th June 2015 Mrs Justice Pauffley directed Mrs Kirk "to cause M to return to England and Wales on a date between 25 th June and 30 thJune". A penal notice was attached to the order, but Mrs Kirk failed to take any steps to comply with it;
b) On 18 th September 2015 Mr Justice Mostyn refused an application to vary Pauffley J's order and he made a fresh direction in like terms against Mrs Kirk, who again took no steps to comply with it.
Thereafter the case was conducted before Mr Justice Baker. Given the passage of time, and the fact that MM had become established in the Portuguese care home, Baker J directed a fresh assessment of MM's welfare. A senior social worker and a community matron specialising in dementia travelled to Portugal in April 2016. The report of their investigations which was subsequently filed in the COP proceedings described a number of professional concerns about MM's care. Once again the welfare recommendation was for MM to be returned to Devon so that he may be placed back in a care home in his home community.
After a fully contested hearing Mr Justice Baker, in a judgment given on 10 th June 2016, concluded that it was indeed in MM's interests to be returned to Devon and he therefore made an order which included the following provision at paragraph 7:
"No later than 4 p.m. on 27 th June 2016 Ms Theresa Kirk shall provide to Devon County Council 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."
The court order, which was in fact issued on 20 th June 2016, also included two recitals in the following terms:
"The court warned Ms 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 by fine."
"The court informed Ms Kirk that if she wishes 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 that unless and until the orders made today are stayed by the Court of Appeal they remain in force and should be obeyed in full."
It is common ground that Ms Kirk did not sign the necessary authorisation documentation in accordance with paragraph 7 of the 20 th June order. The local authority therefore issued contempt proceedings against her.
The contempt proceedings
The contempt proceedings came on for hearing before Mr Justice Newton on 18 th August 2016. At that hearing Mrs Kirk, who had appeared as a litigant in person before Baker J in June, was represented by solicitors and counsel. The hearing took place in open court.
By that time (on 13 th July 2016) Mrs Kirk, acting as a litigant in person, had issued a Notice of Appeal in the Court of Appeal against the June 2016 decision of Baker J. The box on the Notice of Appeal form relating to an application for a stay of execution had not been ticked. This court has been told that the application for permission to appeal had become stalled in the Court of Appeal because of the absence of a transcript of Baker J's judgment and because neither of the teams of legal representatives acting for Devon County Council and the Official Solicitor (representing MM's interests) had an adequate note of Baker J's oral judgment. The application for permission to appeal remained outstanding until the present hearing before this court and I will turn to consider it in the final section of this judgment.
Newton J was told of the application for permission to appeal. The court was also, correctly, told that there had been no application to the Court of Appeal for a stay of the June order.
Having heard submissions Mr Justice Newton gave judgment. Having recorded the relevant background and, in particular the two recitals from the June order to which I have referred, he went on to record the agreed fact that the order had not been complied with in that the relevant document of authority had not been signed by Mrs Kirk. The judge then referred to her pending application for permission to appeal:
"15. I understand that she had 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.
16. 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."
It was common ground 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 on 18 th August. He therefore had no option but to find contempt of court proved.
The judge then turned to the issue of sentence as follows:
"22. I proceed separately to sentence. I have listened with care to the mitigation put forward by Mr Gifford Head. (Counsel for Mrs Kirk). 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.
23. The problem, inevitably, is when a court is asked to make a decision, there will be two — sometimes more — solutions. Baker J...
To continue reading
Request your trial
-
Christopher Lovett v Wigan Borough Council
...2012, the Court of Appeal, as the relevant authority, can make a representation order covering the appeal: Devon County Council v Kirk [2017] 4 WLR 36 at paragraph 52 and Re O (Committal): Legal Representation (above) at paragraph 22 (and see paragraphs 2 and 4). The sentence imposed on Mr......
-
Teresa Kirk v Devon County Council and Another
...by the full court (Sir James Munby P, Black and McFarlane LJJ) on 8 November 2016, on which occasion we stayed Baker J's order: Devon County Council v Kirk [2016] EWCA Civ 1221, paras 32–38. That judgment sets out the background in some detail. 2 For present purposes the key facts can be qu......
-
Rizwan Hussain v Gulraj Vaswani
...orders for contempt of court, I do not see that this is relevant. As Sir James Munby P explained in Devon County Council v Kirk [2016] EWCA Civ 1221, [2017] 4 WLR 16 at [43]–[49], the value of the Official Solicitor was that he or she could act where the contemnor was languishing in priso......
-
Re MM (A Patient)
...and gave her permission to appeal against the welfare order previously made by Baker J on 20 June 2016: Devon County Council v Kirk [2016] EWCA Civ 1221. On the second occasion, on 26 January 2017 (Sir James Munby P), I approved a consent order allowing her appeal against Baker J's order: R......