Teresa Kirk v Devon County Council and Another

JurisdictionEngland & Wales
JudgeSir James Munby
Judgment Date30 January 2017
Neutral Citation[2017] EWCA Civ 34
Date30 January 2017
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B4/2016/2837

[2017] EWCA Civ 34

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COURT OF PROTECTION

Mr Justice BAKER

[2016] EWCOP 45

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir James Munby PRESIDENT OF THE FAMILY DIVISION

Case No: B4/2016/2837

Re MM (A Patient)

Between:
Teresa Kirk
Appellant
and
(1) Devon County Council
(2) MM (by his litigation friend the Official Solicitor)
Respondent

Application dealt with on paper

Judgment Approved

Sir James Munby, President of the Family Division:

1

This is an appeal from an order made by Baker J in the Court of Protection on 20 June 2016. Permission to appeal was granted 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 quickly summarised. The Court of Protection has for some time been dealing, on the application of the relevant local authority, Devon County Council, with an elderly man, MM, who lacks capacity. MM was born in Madeira but had lived in this country for many years. He had been removed to Portugal, where he remains, by the appellant, Ms Kirk. A number of judges have found that his best interests will be served by his return to his familiar surroundings in this country. In a detailed judgment which he delivered on 10 June 2016, Baker J gave reasons for coming to that view and explained why he was making the order which is now under challenge: Re MM, Devon County Council v MM and TK [2016] EWCOP 45. Paragraph 7 of the order provided as follows:

"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."

3

Ms Kirk failed to comply with that order and refused to sign the required document. The local authority applied for her committal. On 18 August 2016, Newton J found her guilty of contempt and sentenced her to six months' imprisonment: Re M [2016] EWCOP 42. Her appeal against that order came before us on 8 November 2016, when we quashed the committal order and directed Ms Kirk's immediate release from prison, essentially on the ground that Newton J should not have embarked upon the hearing of the committal application while her application for permission to appeal against Baker J's order was pending: Devon County Council v Kirk [2016] EWCA Civ 1221, paras 28–30.

4

In explaining why we were granting Ms Kirk permission to appeal against Baker J's order, McFarlane LJ said this, Devon County Council v Kirk [2016] EWCA Civ 1221, paras 33–36:

"33 Where Mrs Kirk may have an arguable appeal is in relation to the order that followed on from the overall welfare determination insofar as it made her subject to mandatory orders to sign documents which were backed up by a penal notice and an express warning of potential committal proceedings. It is certainly possible to argue that any determination of MM's welfare should have included consideration of how any move from Portugal to Devon could be achieved. Where, as was apparently taken to be the case before Baker J, it is said that the move could only be secured by placing Mrs Kirk under threat of the sanction of imprisonment, it is arguable that the very question of whether Mrs Kirk should be put in that position and face the prospect of a prison sentence for non-compliance should have been addressed by the COP in the context of MM's welfare. In short terms, that question might be '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?'

34 In addition, during the course of the oral hearing before this court, the issue of what alternative means there may have been to achieve MM's repatriation without having to require Mrs Kirk's signature was raised but not satisfactorily answered.

35 Neither of the above points were seemingly addressed by Baker J in the main welfare judgment which has now been transcribed …

36 … I propose that the court should refuse her application for permission to appeal as it is presently drawn, namely against the substance of the welfare judgment, but grant her permission to appeal against the mandatory orders that were made against her in June 2016 on the two basic grounds that I have identified, namely whether it was in MM's best interests to make such an order and, secondly, possible alternative methods of repatriation. It will be open to Mrs Kirk to renew her application for permission to appeal against the substantive welfare decision at the hearing of the appeal."

Black LJ and I agreed.

5

The parties have now compromised the appeal and by application dated 11 January 2017 seek, in accordance with CPR PD52A para 6.4, the approval of the court to a consent order allowing the appeal. The basis of the application is set out in paragraphs 5–9 of the relevant document attached to the Form N244:

"As has become apparent from:-

a. Ms Kirk's initial stated refusal to comply with paragraph 7, and

b. Her subsequent refusal in the face of a committal order to comply with paragraph 7, and

c. Her continuing refusal in the face of her actual imprisonment for contempt of court and her stated position to the Court of Appeal that she will not comply with the terms of paragraph 7 because of her sincerely held view that to do so would not be in MM's best interests,

it is now plain, beyond any doubt, that Ms Kirk will not comply with the terms of the order. Quite apart from arguments as to whether or not the order was lawfully or properly made at the time, the order is no longer an effective method of securing MM's return to the jurisdiction and therefore both the first and second respondents agree that the order is now otiose and should be set aside for that reason alone.

Furthermore, the first and second respondents accept that with the passage of time since the order of 20 June 2016 there are strong grounds for the court at first instance to revisit the conclusion that the repatriation of MM is in his best interests, which assessment should be based on current up to date evidence as to his best interests.

In the light of the foregoing, any appeal against paragraph 7 of the said order would appear to be academic in nature and none of the parties consider that it is appropriate or proportionate to invite the Court of Appeal to determine the appeal on its merits. Such an exercise would be futile in the light of the pressing need to consider MM's best interests today in 2017 and not 7 months ago.

The parties reserve their arguments on the merits of the appeal and invite the court to approve the proposed consent order on the simple basis that the order be set aside, that the issues in relation to MM's welfare may continue to be addressed at first instance and that the costs of the appeal be dealt with in the manner suggested in the order, namely on the papers unless one of the parties requires the court to deal with the application at an oral hearing.

The suggested course carries with it the clear benefit of saving the significant costs to each party of representation at the appeal, in a case where one party is publicly funded (and has already expended significant sums in this litigation) and MM, the subject of these proceedings, is already exposed to a significant charge upon his diminishing estate to meet the costs of his representation in these proceedings."

6

In support of the application, the Official Solicitor, who acts as MM's litigation friend, has filed an opinion of counsel, Ms Victoria Butler-Cole, dated 11 January 2017. In the circumstances I should set out paragraphs 6–9 of her opinion:

"… it is now abundantly clear, in a way that was not in my view...

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2 cases
  • Tatiana Akhmedova v Farkhad Teimur Ogly Akhmedov
    • United Kingdom
    • Family Division
    • 21 April 2021
    ...Though it is well established that the court is not in the business of making futile orders, the Trusts' reliance on Re MM (A Patient) [2017] EWCA Civ 34 did not really assist their argument. At [13], the President (Sir James Munby) restated the long established principle that “the startin......
  • Re MM (A Patient)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 April 2017
    ...2017 (Sir James Munby P), I approved a consent order allowing her appeal against Baker J's order: Re MM, Kirk v Devon County Council [2017] EWCA Civ 34. I dealt with the matter on paper and without an oral hearing. I have now to deal with the costs of the appeals. 2 By an order dated 8 Nove......

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