Keywords: Removal of P by relative, Contempt, Welfare Attorney, Court of Protection
This long running saga involved a man known as MM throughout, who was in his 80s with dementia.
In 2013, MM had signed a LPA for both Health and Welfare and Property and Affairs appointing Mrs. Kirk and another individual as his attorneys. Mrs. Kirk was genuinely concerned to protect MM’s interests as she saw them.
At some point MM lost the capacity to decide about his care arrangements and Mrs. Kirk moved him from his home in Devon to live with her in another part of England. In September 2014, Devon County Council began proceedings in the Court of Protection. During those proceedings an independent social work report recommended that it would be in MM’s best interests to be cared for in Devon, his longstanding home area, where he had many friends. Within a few days and without any notice to professionals in the case, Mrs. Kirk removed MM from the UK and took him to Portugal (his country of birth and where some of his family members still live) and placed him in a care home there. She subsequently returned to her home in the UK. MM remained in the care home in Portugal.
The care home in Portugal refused to release MM from their care without express authority to do so from Mrs. Kirk. During the following 18 months, various CoP judges made orders designed to achieve the return of MM to England so that he might be placed in a care home in Devon. The Court of Protection orders were therefore directed at Mrs. Kirk requiring her to take such steps as were necessary to achieve MM’s return to the UK and, most recently, specifically directing her to sign the appropriate paperwork authorising the care home in Portugal to release him.
Given the amount of time MM had by now spent in the Portuguese care home, a fresh assessment was carried out by a social worker and nurse from the UK. This also recommended his return to Devon and expressed a number of concerns about his care in Portugal. Following a hearing, Baker J, sitting in the CoP, again ruled that it was in MM’s best interests to return to Devon and made an order requiring Mrs. Kirk to sign the necessary paperwork, warning her that she would be in contempt of court if she did not do so.
Mrs. Kirk sought to appeal against the decision, but the application for permission to appeal became stalled due to the absence of a transcript of the CoP proceedings and (probably due to Mrs. Kirk’s lack of legal representation in those proceedings) the box on the appeal form to apply for a stay of the CoP order pending a possible appeal was not ticked.
In the meantime, contempt proceedings were heard by Mr Justice Newton. Mrs. Kirk continued to refuse to sign the paperwork to allow MM to return to the UK in defiance of the CoP order and despite her having been told that, regardless of her appeal, she was still required to comply with the order because the order had not been stayed. Therefore, contempt of court had been proved and Mrs. Kirk was sentenced to 6 months’ imprisonment.
After Mrs. Kirk had spent some 6 weeks in prison and only on the intervention of pro bono legal representatives was Mrs. Kirk’s case appealed. The Court of Appeal released Mrs. Kirk, despite her continued refusal to obey the Court of Protection order. McFarlane LJ expressed significant concern about the circumstances which had arisen, saying:
“The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of MM for whose welfare she is, as the judge found, genuinely concerned. The ultimate purpose of her incarceration is to achieve the removal of an 81-year-old gentleman, who has suffered from dementia for a number of years, from a care home in one country to a care home in Devon which is near his longstanding home and within a community where he is well known. Those stark facts, to my mind, plainly raise the question of whether the COP was justified, on the basis that it was in MM’s best interests to do so, in making an order which placed Mrs. Kirk in jeopardy of a prison sentence unless she complied with it.” (para. 27 of the contempt appeal)
The appeal actually succeeded on the rather narrower grounds of the pending application to appeal the Court of Protection’s original order. The Court of Appeal held that “it was simply premature for the judge to press on with the committal application. The absence of an application for a stay of the order, where it is almost certain that a stay would have been granted pending receipt of the transcript of Baker J’s judgment, should not have been taken as justification for proceeding with the committal application.” (para. 30 of the contempt appeal).
However, the appeal court raised the issue of whether a proposed course of action can be considered to be in P’s best interests if the only means of achieving it involves sending to prison someone whose interests he could be expected to have at heart if he had had the capacity.
At the time of the appeal, it was intended that a subsequent CoP hearing would be held to consider
• what alternative means there may have been to achieve MM’s repatriation without having to require Mrs. Kirk’s signature
• whether the move to Devon was still in MM’s best interests, given the amount of time which had now passed (and the resulting length of his residence in Portugal) and in light of the clear evidence by this point that Mrs. Kirk would not comply with the order to return him to the UK, regardless of the extent of any coercion which might be applied.
In the event, however, the parties agreed to a consent order that the original order for MM to be returned to the UK should be set aside. An analysis of Portuguese law undertaken by Devon County Council concluded that, despite the suspension of the Lasting Power of Attorney appointing Mrs. Kirk in England, she was still viewed under Portuguese law as the decision maker for MM (a conclusion which must be considered tentative as the advice was not submitted to the court). Proceedings in Portugal were considered pointless as they were likely to take up to a year. Additionally, the contempt proceedings had demonstrated beyond doubt that Mrs. Kirk could not be coerced into compliance with court orders to co-operate with MM’s return to the UK. Consequently, the parties agreed with the conclusion that there was nothing further that the Court of Protection could do which had a realistic prospect of affecting MM’s situation and, therefore, that further proceedings (and the resulting costs to MM’s estate) were not in his best interests.
In approving the consent order, Sir James Munby P, considered the issue of whether making an order on the basis of the reality that Mrs. Kirk’s refusal to comply with orders of the Court of Protection would continue and the risk of rewarding that refusal by ‘giving in’. He stressed that, normally, courts will not decline to make orders on the grounds that they will not be obeyed. However he also acknowledged “it is well recognised that there will come a point when even the most obdurate and defiant contemnor has to be released, despite continuing non-compliance with the court’s order.” (para. 14 judgement of 31st January 2017). He stressed that the court was not ‘giving in’ at the first sign of refusal to comply, but was merely accepting the reality, following Mrs. Kirk’s continuing refusal in the face of actual experience of imprisonment, that continued attempts at coercion would be futile.
SirJames Munby P concluded:
“I would not want it to be too readily assumed that the Court of Protection will be as powerless in other similar cases. If a similar problem arises in future, it might be worth exploring whether the foreign country would recognise and be prepared to give effect either to an order of the Court of Protection or to an authority, of the kind Ms Kirk was ordered to execute in this case, executed by a Deputy or by an officer of the Court of Protection.” (para. 16)
The consent order leaves unexamined the question of whether the risk of Mrs. Kirk’s imprisonment for contempt was sufficient in and of itself to shift the balance of MM’s best interests to remaining in Portugal. Certainly, the outcome of this case could be taken as encouragement to future friends or relatives who disagree with the CoP’s view of P’s best interests. However, as in Mrs. Kirk’s case, it remains likely that, in the absence of other factors influencing the Court’s view of P’s best interests, a relative in such a situation might well have to be willing to actually be imprisoned (albeit temporarily) in order sufficiently to convince the Court of Protection of their stubbornness so as to persuade the court to reconsider P’s best interests, on those grounds alone.
Following the death of MM (in Portugal) on 1/2/17, reporting restrictions were lifted.
Full transcript at: http://www.bailii.org/ew/cases/EWCA/Civ/2017/34.html
Transcripts of previous hearings: http://www.bailii.org/ew/cases/EWCA/Civ/2016/1221.html
Useful timeline of the case: http://www.transparencyproject.org.uk/press/wp-content/uploads/Teresa-Kirk-timeline.pdf