Devon County Council v Kirk

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.

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:

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^th June”. A penal notice was attached to the order, but Mrs Kirk failed to take any steps to comply with it;

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:

The court order, which was in fact issued on 20^th June 2016, also included two recitals in the following terms:

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 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:

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:

The order made by Newton J gave Mrs Kirk a further opportunity to avoid going to prison by signing the document of authority. The order expressly provided that it would be suspended for a period of seven days and that no arrest warrant would be issued before 25^th August 2016. It further provided that, if the required authority document was delivered to Devon County Council and to the Court prior to that date, the arrest warrant would not be issued.

In the event Mrs Kirk continued to decline to sign the document and the judge issued an arrest warrant, we were told, on 25^th August 2016.

Mrs Kirk was apparently arrested on 26^th September and since that time has been held in prison pursuant to the judge’s order until her release on 8^th November 2016 following the decision of this court to allow her appeal.

Following Mrs Kirk’s incarceration on 26^th September it is not apparent that she made any attempt to launch an appeal against the committal order herself. Before this court she was represented by Mr Colin Challenger, acting pro bono until 21^st October 2016 when LSGA solicitors applied to come onto the record, who, following, as I understand it, intervention by Mrs Kirk’s daughter, became aware of Mrs Kirk’s circumstances on 14^th October and who then indicated a willingness to act on her behalf. The Court of Appeal office were able to provide him with access to the papers in Mrs Kirk’s application for permission to appeal against the June order and Mr Challenger prepared a draft Notice of Appeal and Grounds of Appeal against the contempt order which he sent to HM Prison Bronzefield where Mrs Kirk was being held. Mr Challenger told this court that he received no response from that communication. He then tried to visit Mrs Kirk and presented himself at the prison on 25^th October (pursuant to an email arrangement made with the prison) but, he told the court, he was refused access “because the officer in charge of legal visits was on leave that week”.

Mr Challenger, whose normal area of practice is commercial and property law, was commendably persistent. On 26^th Ocotber he appeared before the Queen’s Bench applications judge, Ouseley J, and explained the circumstances. Ouseley J prepared a letter for dispatch to the prison indicating that unless the staff at HMP Bronzefield co-operated in arranging a visit by Mr Challenger to Mrs Kirk as her legal adviser, Ouseley J would require the Governor of the prison to present themselves before him in court on 28^th October. Mr Challenger told us that the response to Ouseley J’s letter, which was sent by fax to the prison, was immediate. The Notice of Appeal and Grounds were shown to Mrs Kirk (apparently for the first time), she signed them and, as I have indicated, the Notice of Appeal was issued on 27^th October.

Pausing there, whilst it is not for this court to engage in express criticism of HM Prison Service, not least because it has had no notice of this hearing and we have not received any submissions on its behalf, two points can fairly be made. Firstly, if (and I stress ‘if’) the account of events that we have been given is broadly correct, then it is a matter of great concern that the draft Notice of Appeal and other documents initially transmitted to the prison by Mr Challenger were not passed on to Mrs Kirk and, obviously, that he was refused admission to visit her. Secondly, the conduct of Mr Challenger is worthy of significant praise; one might reasonably question what the position would have been had he not taken up her case and stuck with it in the manner that I have described.

The thirteen grounds of appeal put forward by Mr Challenger range widely across the merits of the case and include matters which are also relevant to the proposed appeal against the order made by Baker J. At the oral hearing of the committal appeal, we encouraged Mr Challenger to focus upon ground 12, which is in the following terms:

Responding to the appeal on ground 12 Miss Louise MacLynn, representing Devon County Council, relied, as the judge had done, on the fact that Mrs Kirk was legally represented before Newton J and her legal team apparently took no step to apply for the June order to be stayed pending determination of the application for permission to appeal.

Miss Fenella Morris QC, acting on the instruction of the Official Solicitor, on behalf of MM, urged the court not to approach the appeal in a manner which might provide an obdurate respondent to COP proceedings with something of a “trump card” to the effect that continued refusal could never be met by the sanction of committal.

Miss Morris also submitted that it was plain that both Baker J and Newton J had taken all of the relevant circumstances into account, the ultimate decision was a matter of judgment and the Court of Appeal should be slow to interfere in their determinations.

I am bound to record that I find the circumstances of this case to be of significant concern. 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. That aspect of the case, however, is a matter which goes to Mrs Kirk’s application for permission to appeal the original order, to which I will turn in due course.

Be that as it may, Mrs Kirk’s appeal against the committal order, in my view, must succeed on a different, more narrow, basis relating to the fact that she had a pending application for permission to appeal against the order of Baker J at the time that the COP proceeded with the committal proceedings. I am clear that the court was in error in proceeding with the application for committal without further clarification as to the proposed appeal. In cases such as this this court must be careful never to say “never”. There will undoubtedly be urgent and pressing cases where it is necessary to proceed with committal proceedings notwithstanding an extant application for permission to appeal against a previous substantive ruling. This, however, was not such a case.

It can undoubtedly be said that Mrs Kirk, albeit as a litigant in person, had been advised to apply for a stay to the Court of Appeal and warned that if she did not do so any committal application would proceed; it is also right that no application for a stay was made on her behalf by the lawyers acting for her before Newton J. It must, however, be plain to any lawyer considering these circumstances that, if a stay had been applied for, it would almost certainly have been granted by the Court of Appeal, at least until a transcript of the judgment of Baker J had been obtained. If a stay had been in place, again, it is difficult to conceive that a committal application would have proceeded pending determination of the permission to appeal application.

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. 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.

For that reason, I concluded that the appeal against the committal order must succeed with the result that that order was set aside at the conclusion of the oral hearing.

The Notice of Appeal against the orders made by Baker J on 20^th June was issued on 13^th July 2016 by Mrs Kirk acting in person. The short grounds of appeal simply assert her disagreement with the judge’s conclusions. An appeal on that basis has little, if any, prospect of success. Indeed, having read the transcript of Baker J’s welfare judgment, it is, as Mr Challenger volunteered, difficult to identify a valid ground for challenge (albeit that he did not have any instructions from Mrs Kirk to concede the proposed appeal on that basis).

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?’.

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.

Neither of the above points were seemingly addressed by Baker J in the main welfare judgment which has now been transcribed. It is not clear whether the judge gave a short further judgment on the question of whether or not Mrs Kirk should be compelled, on pain of committal, to sign the documents or whether there was any other alternative method of achieving MM’s move to Devon without directly involving Mrs Kirk. A transcript of any further judgment, if given, must now be obtained.

Mrs Kirk is now at liberty and currently remains a litigant in person with respect to her proposed appeal against the orders made by Baker J. She was not produced from prison to attend the oral hearing and we have not therefore heard directly from her. We do not know whether she will be represented at any appeal hearing, either by Mr Challenger or any other advocate. In the circumstances 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.

On granting permission to appeal we also directed that Baker J’s order is stayed until the hearing of the appeal.

If my Lord and my Lady agree, I direct that the appeal be listed for half a day before a court of three judges and that the hearing should be expedited.

I agree with Lord Justice McFarlane’s reasons for allowing the committal appeal and with the course he proposes in relation to permission to appeal against the orders made by Baker J on 20^th June 2016.

I agree with my Lord’s judgment. I associate myself explicitly with my Lord’s praise for Mr Challenger, to whom we, like Mrs Kirk, are much indebted. And I share the concern which my Lord has articulated in paragraph 27 above.

In the course of argument I expressed the view that Mrs Kirk had been failed by the system. That failure relates in particular to the period after Mr Justice Baker and Mr Justice Newton had made their orders.

Mr Justice Baker gave judgment on 10^th June 2016; it took the best part of five months for the transcript to be produced, very shortly before the matter came on before us. Difficulties and delays in obtaining transcripts of judgments under appeal seem to be endemic, notwithstanding judicial protests down the years. The delay in this particular case was, in my judgment, intolerable, bearing in mind that Mr Justice Baker’s judgment was the platform for Mrs Kirk’s subsequent committal.

Of greatest concern, however, is the fact that, in circumstances where she should never have been committed at all, Mrs Kirk languished in prison for almost seven weeks before being released. And, as my Lord has pointedly observed, how much longer might she have remained there had Mr Challenger not intervened and been so tenacious in his pursuit of her release? A proper system should not permit this to happen. The fact that it did happen here suggests that the systems in place are not adequate.

I referred in Justice for Families Ltd v Secretary of State for Justice[2014] EWCA Civ 1477, [2015] 2 FLR 321, paras 46-47, to the fact that the Official Solicitor no longer has any role to play in relation to committal orders which result from contempt of court. I cannot help wondering whether Mrs Kirk might have achieved an earlier release if the Official Solicitor was still involved in such cases and still had responsibilities in relation to contemnors.

The problem of contemnors languishing in the Fleet prison, whether through poverty, ignorance, obstinacy, lack of resolve or choice (Footnote: ¹) was addressed by Sir Edward Sugden, then Solicitor General, later, as Lord St Leonards, the Lord Chancellor, who took the initiative which led to the enactment of the Contempt of Court Act 1830. Section 2 required the Warden of the Fleet to make a report four times a year, on the 20^th January, 20^th April, 20^th July and 20^th October, to the Lord Chancellor of “the Names and Descriptions of [all Persons committed by the Courts of Equity for Contempts] in his Custody … with the Causes and Dates of their respective Commitments.” Section 15 contained, as Rule 7, the requirement:

The arrangements in the 1830 Act seem to have broken down, and in any event could not survive the abolition of the Masters by the Court of Chancery Act 1852, and at some time in the 1840s were taken over by J J Johnson, who had been appointed the Solicitor to the Suitors Fund, the ancestor of the Official Solicitor, in 1842. Matters were put on a statutory basis by the Court of Chancery Act 1860, section 2 of which provided that:

Following the eventual repeal of the 1860 Act, the matter was regulated by a Direction to the Official Solicitor issued by Lord Dilhorne LC on 29 May 1963, requiring the Official Solicitor to:

The modern practice, as I recall, and I was involved on the instructions of the Official Solicitor in many such cases in the 1980s and 1990s, was that the Official Solicitor was notified by prison governors, very shortly after the prisoner’s arrival, of the reception in prison of every contemnor – which meant that the Official Solicitor could intervene, where appropriate, very quickly.

As can be seen, the process of quarterly review by an officer of the court, instituted in 1830, continued until 2012. It served contemnors, and more generally the system, well. Not the least of the merits of the involvement of the Official Solicitor was the fact that he was not dependent upon instructions from the contemnor and indeed could, and did, act even though the contemnor did not want him to. Thus the obdurate, those seeking martyrdom and, more generally, those who could not or would not act on their own behalf, could be freed at the earliest proper time: see, for example, Churchman v Joint Shop Stewards’ Committee [1972] 1 WLR 1094, In re Barrell Enterprises [1973] 1 WLR 19, and Enfield London Borough Council v Mahoney [1983] 1 WLR 749.

My Lord has referred to the difficulties Mr Challenger seems to have had in gaining access to Mrs Kirk in prison. I share his great concern. I make no apologies for repeating here what I said in Chelmsford County Court v Ramet [2014] EWHC 56 (Fam, [2014] 2 FLR 1081, paras 34-35:

Lest prison governors and their officers are under misapprehension as to the seriousness of this, I point out that in Raymond v Honey Lord Bridge of Harwich observed at p 15 that “No doubt the unjustified stopping of a communication between a prisoner and his solicitor is capable of amounting to a contempt of court.” So too, if there is unjustified obstruction of a legal visit to a prisoner by his lawyer.

I end with a reminder to contemnors and their representatives of the availability of public funding. I repeat what I said in Ramet, paras 32-33: