Lioubov Macpherson v Sunderland City Council

This is an appeal against a finding of contempt of court and sentence of imprisonment imposed as a result of that contempt in proceedings in the Court of Protection.

The proceedings concern a woman in her mid thirties, hereafter referred to as “FP”, who was diagnosed with cerebral palsy as a child, suffered meningitis in early adulthood and who has now been diagnosed as suffering with paranoid schizophrenia. The appellant Lioubov Macpherson, (hereafter either “Ms Macpherson” or “the appellant”) is FP’s mother. For a number of years, she has been in sharp disagreement with many of the professionals who have treated and sought to assist her daughter.

At the outset of these proceedings brought by the local authority, there was a dispute as to whether FP lacked capacity. The appellant maintained, and still maintains, that her daughter does not lack capacity. Following a contested hearing, however, HHJ Moir in 2020 declared that FP lacked capacity to conduct proceedings, and to make decisions about where she should live, her care arrangements, and her contact with other people. Her judgment has not been included in the papers for this appeal hearing, but from passages in a later judgment it is clear that Judge Moir made a series of adverse findings about the appellant’s conduct, including her behaviour towards care workers which she described as abusive and unpleasant. The judge described the appellant’s relationship with FP as “enmeshed” and found that

“the dynamics of the relationship contribute to an unhealthy cycle of FP and [the appellant’s] level of emotion and distress, increasing distress in the other and, in FP’s case, leading to increased agitation and a decline in her mental health.”

The judge ordered that it was in FP’s best interests not to be cared for at home by the appellant but instead to be moved to a care home. She made injunctive orders preventing the appellant recording FP and care staff or publishing information about the proceedings. The appellant’s application for permission to appeal against Judge Moir’s order was refused.

There was no material change in the appellant’s conduct. On 30 June 2022, following a further contested hearing, Poole J suspended face-to-face contact between FP and the appellant. He renewed and extended the order restraining the appellant from publishing information in these terms:

“1.

[The appellant] shall not:

a.

record FP by video or audio for any purpose or in any way;

b.

record whether by video, audio or photographing staff from placement 3, or any other health or social care staff concerned with FP;

c.

in any way publicise these proceedings or any evidence filed in the proceedings, including by way of posting on social media, YouTube, or any internet platform or website, including private or public sites;

d.

cause to be published on any social media, video or streaming service, including YouTube, any video or audio recording of FP, recorded at any date.

2.

[The appellant] shall forthwith remove from any social media video or streaming service including YouTube and from any website or other location on the internet, including private or public sites, any video or audio recording of FP, and/or staff supporting FP, which is present on any of those sites or services.”

The order was endorsed with a penal notice. The appellant’s application to this Court for permission to appeal against that order was dismissed as totally without merit.

In November and December 2022, the local authority filed three applications to commit the appellant to prison for contempt of court by breaking the order dated 30 June. They alleged a total of eleven breaches of the order, although ultimately only five of those breaches were pursued. It was alleged that the appellant had uploaded to social media, including Facebook and Twitter, videos showing the appellant talking to FP on the telephone and links to video films of FP and articles about her written by the appellant. At a hearing of the applications before Poole J on 8 December 2022, the appellant, who was represented by counsel, admitted the breaches, whereupon the judge adjourned the hearing for one month before considering sentence. At the adjourned hearing on 16 January 2023, counsel on behalf of the appellant informed the court that his client has removed the recordings from the internet that day.

On 20 January 2023, Poole J delivered his judgment on sentence (reported at [2023] EWCOP 3). He found that the appellant’s actions were deliberate and that her attitude was that the court’s orders were unjust and that she should not comply with them. He found that the published recordings, which he had viewed, disclosed conduct that was harmful to FP because it demonstrated the appellant manipulating conversations with her daughter and feeding her the line that she was being harmed by her carers, conduct which the judge described as particularly dangerous to FP’s mental health given her diagnosis of paranoid schizophrenia. He found no evidence that FP herself was aware of the fact that her conversations were being published, but it was the evidence of FP’s litigation friend that FP had told him that her mother might be sent to prison for posting things on the internet.

The judge observed:

“[The appellant’s] conduct has therefore placed the court in an invidious position. If she is imprisoned for her deliberate and repeated breaches of court orders designed to protect her daughter, the fact of the imprisonment may well cause distress to the very person the court has sought to protect. A sanction other than imprisonment risks sending a signal to the [appellant] and to others that the court will tolerate deliberate breaches of its orders.”

He concluded that only a sentence of imprisonment would meet the seriousness of the appellant’s contempt, and concluded that the appropriate length of sentence was 28 days on each of the five counts, to run concurrently. He continued, however:

“the circumstances of this case are such that immediate imprisonment is not justified. The imposition of immediate imprisonment would be harmful to the [appellant’s] husband and, most importantly, to FP. The fact that the [appellant] has removed the recordings of FP from the internet, albeit belatedly, allows me to pass a suspended sentence.”

He therefore suspended the sentence for 12 months.

The appellant appealed against the finding of contempt and the sentence. On 4 May 2023, this Court (Peter Jackson LJ, Dingemans LJ and Elisabeth Laing LJ) dismissed the appeal. The judgment of the Court is reported at [2023] EWCA Civ 574.

At a further hearing on 19 June 2023, Poole J renewed the injunctions in the same terms as set out above, again endorsed with a penal notice. The appellant applied to this Court for permission to appeal against that order. Her application was dismissed as totally without merit. Afterwards, the appellant sent an email to the Civil Appeals Office, copied to the local authority legal unit, saying:

“Please don't be surprised if you see a lot more videos on social media.  I also will reinstall all of the old posts and videos with material evidence that the Court forced me to delete in January of this year, except one video which is not pixelated.”

On 15 November 2023, the local authority issued a further application to commit the appellant to prison for contempt of court. The allegations made by the local authority were set out by the judge at paragraph 18 of the judgment under appeal and can be summarised as follows:

The hearing of the second committal application on 22 January 2024 took place when the appellant was in France. She attended the hearing remotely, and, according to paragraph 6 of the judgment, although she had been advised of her rights, told the court that she was prepared to argue her case herself and did not seek an adjournment for representation.

In his judgment, the judge observed that four of the alleged breaches involved the reposting of material which had been posted in contempt of court as found in the previous committal proceedings. He summarised the effect of these breaches in these terms (paragraph 20):

“In short, the alleged breaches include posting of material which, cumulatively, names FP by her first name, refers to FP as her daughter, and refers to the Court of Protection proceedings. Hence they easily identify FP as the subject of the Court of Protection proceedings.  They identify by name her placement; they identify by name a number of professionals who have cared for or been responsible for the health and wellbeing of FP, they mention the Court of Protection proceedings; they include posting links to documents within the proceedings.”

The judge recorded that, whilst the appellant accepted that she had acted in the way alleged by the local authority, she denied that she had been in breach of the injunctions. She asserted that she was entitled to act in that way in exercise of her Article 10 right to freedom of expression, and that the injunctive order was made illegally by a corrupt court, which did not provide her with her Article 6 right to a fair hearing.  In that context, she also maintained that the Court had disregarded and failed to comply with the Mental Capacity Act 2005 during the proceedings as a whole. The judge rejected all of those arguments. He described the recordings of the appellant talking to her daughter as “unsettling and troubling” and said that they showed the appellant manipulating FP into saying things and into fearing persecution which caused her distress. Although the appellant interpreted FP’s distress as being caused by her treatment in the placement, it was clear to the judge that the real cause was the appellant’s behaviour. He concluded that the injunctions were breached and that the breaches were a clear contempt of court.

Turning to the question of sentence, the judge (at paragraph 31) addressed again the fact that she was not represented at the hearing:

“-[Ms Macpherson] has been aware from the beginning of this application for committal for contempt, as she was on the previous application, of her entitlement to funding for legal representation.  She was legally represented in the previous committal proceedings. She says that she has taken steps to try and secure legal representation for this application but has failed to secure it.  She says no-one will take her case. It seems to me that there is very little prospect, particularly as she is in France and intends to remain there, of her trying to obtain legal representation in time for an adjourned sentence hearing, or perhaps at all. “

The judge adopted the principles summarised by MacDonald J in Re Dahlia Griffith [2020] EWCOP 46 at paragraph 42. He concluded that the appellant had no means of paying a fine, and that, although she was the co-owner of a property, it was required by her husband who has his own care needs. But in any event he found that the circumstances of the breaches were serious. They were committed during the currency of the suspended sentence he had previously imposed. He found that, despite her denials that her actions were in contempt, the appellant knew that she would be committing a contempt by posting the material. He found that she showed no intention of removing the posts and he doubted whether a sentence of imprisonment would ensure future compliance. As she was in France, any warrant for her committal could only take effect if and when she returned to this jurisdiction.

The judge set out his conclusions as to sentence in the following paragraphs:

“42.

The Court has no desire to pass a sentence of imprisonment on [Ms Macpherson], not least because in some sense that is exactly what she is provoking the Court to do.  She wants to highlight her complaints about the treatment of her daughter.  She has, for example, I understand, tweeted about the hearing today, no doubt to try and draw attention to herself and her allegations of conspiracy, corruption, and the torture of her daughter.  In many ways, by bringing this committal application, the Local Authority has helped [Ms Macpherson] draw attention to her own position and campaign.  On the other hand, the Local Authority is seeking as best as it can to protect FP, the protected party in the Court of Protection proceedings.

43.

However, very importantly, a purpose of sentencing is to uphold the authority of the Court and discourage others from flagrantly breaching court orders.  The law applies equally to all, even to those who believe, contrary to all the evidence, that they are conducting a justified campaign.  [Ms Macpherson] has openly and intentionally defied the court in a brazen manner. I cannot allow the defendant to treat herself as beyond the law.

44.

Taking into account all the mitigating and aggravating factors, and weighing all the relevant circumstances, I am satisfied that the only sentence that is appropriate in this case is one of imprisonment.  Nothing else would meet the seriousness of [Ms Macpherson’s] contempt of court.  In this case, given the previous suspended sentence and that the current contempt of court is of an identical kind to the previous contempt, it would not be appropriate to suspend the sentence of imprisonment.

45.

The contempt of court was committed during the period of suspension of the sentence of imprisonment for the previous contempt and that sentence ought now to be made immediate.”

He passed a sentence of three months’ imprisonment for each of the breaches committed in September 2023 to run concurrently and implemented the 28 day sentence passed but suspended in January 2023 to run consecutive to the three months’ sentence.

On 21 March 2024, the appellant filed a notice of appeal against the judge’s finding of contempt and the sentence passed. The appeal notice contained what were referred to as draft grounds of appeal. It stated that the appellant had not been represented at the hearing on 22 January 2024, that she was now represented, and her representatives would seek to amend and expand upon the grounds once they had received a transcript of Poole J’s judgment. The listing of the appeal was delayed, in part because of difficulties in obtaining legal aid for the appellant.

In November 2024, the legal team appointed to act for her concluded that they were concerned about her capacity to conduct the proceedings. They invited her to participate in a capacity assessment. The appellant refused. The solicitor applied for and was granted permission for a paper assessment by a psychiatrist. He concluded that the information provided suggested the possibility that the appellant was suffering from a delusional disorder which affected her capacity to use and weigh information and that she therefore lacked capacity to conduct proceedings within the meaning of s.3 of the Mental Capacity Act 2005.

At a hearing before this Court (King, Asplin and Birss LJJ) listed to consider the appellant’s appeal against the committal order, the question of her capacity was considered as a preliminary issue. After hearing extensive legal argument by counsel on both sides, the Court concluded that there was reason to believe that the appellant lacked capacity, but that the Court was not in a position to make a final declaration on that issue. The Court therefore made an interim declaration that she lacked capacity and referred the issue of her capacity to be determined by a Tier 3 (i.e. High Court) judge in the Court of Protection, with the Official Solicitor appointed to act as her litigation friend. In the interim, the stay of the committal order imposed previously pending appeal was extended with the injunctions made in June 2023 also remaining in force. The reasons for the Court’s decisions are set out in the judgment of King LJ at [2024] EWCA Civ 1579.

The issues relating to the appellant’s capacity were in due course determined by Theis J, the Vice-President of the Court of Protection, at a hearing in April 2025 with judgment delivered on 22 May. She concluded that the appellant had capacity to conduct the contempt proceedings on 22 January 2024 and had capacity to conduct this appeal. The reasons for her conclusions are set out in her judgment reported at [2025] EWCOP 18 (T3). In the circumstances it is unnecessary to say anything further about that issue in this judgment.

Following Theis J’s decision, a further order was made by King LJ giving directions in the appeal. She discharged the Official Solicitor from acting as litigation friend, directed that the injunctions made by Poole J on 19 June 2023 remained in force, listed the appeal for today, directed the appellant to attend the hearing, and directed that both parties file updating skeleton arguments by 5 August, with appeal bundles to be filed by 12 August.

In compliance with those directions, the parties filed skeleton arguments (in the case of the appellant, who by this stage was acting in person, a day late), and a bundle of documents was duly filed.

On 13 August, however, the appellant filed applications for leave to file amended grounds of appeal and skeleton argument, and to rely on fresh evidence in the form of a statement from Kate Langtree, who she described as an experienced advocate with a professional background on safeguarding and social care systems. She also filed a number of other documents in support of her case. The local authority's counsel, Mr Karim KC, by email opposed the applications which were referred to me. I directed that they should be determined at the start of the hearing, adding that if permission to amend the grounds and/or rely on fresh evidence was granted, the Court would proceed to determine the appeal at the hearing taking those documents into account and if permission was refused, the Court would determine the appeal on the basis of the documents filed previously. The appellant then sent an email to the Civil Appeals Office setting out grounds of appeal against my order, which in effect reiterated her applications for leave to amend her grounds and file fresh evidence.

At the start of the hearing today, the Court indicated to the parties that we were minded to allow Ms Macpherson to amend her grounds of appeal so that, as a litigant in person facing a custodial sentence for contempt of court, she was able to present her case in the way she wanted. To my mind, the way in which she was seemingly presenting her case in the amended grounds and skeleton argument was not materially different from how she has presented arguments on many occasions in the past so that the local authority would not be prejudiced by allowing the amendment. Mr Karim did not seek to dissuade us from that course. As to the fresh evidence, we informed the parties that we would listen to the appellant’s arguments on the substantive issue and then decide whether to admit Ms Langtree’s statement. Having done so, I have concluded that the statement does not assist this Court on the issues it has to decide and should therefore not be admitted. In her opening remarks to the Court, the appellant also alluded to another document she has filed, from a clinician called Barry Turner, but accepted that his statement was not relevant to the issues before us.

The documents filed by the appellant include a document headed “Background and Context of the Appeal”. This starts with the following paragraph:

“This appeal arises from a committal order made against the Appellant following alleged breaches of a Court of Protection injunction dated 30 June 2022. However, the basis of the appellant’s actions lies in the long and deeply contested history of safeguarding failures, misrepresentation of capacity, denial of legal process, and serious violations of both the appellant’s and FP’s human rights, dating back to 2017.”

It continues by summarising the appellant’s longstanding complaints about her daughter’s treatment, and concludes:

“This appeal challenges not only the committal order, but the broader injustice which preceded it. The appellant’s actions must be seen in the context of:

● systemic abuse and procedural manipulation,

● judicial and professional misconduct,

● a breakdown of trust in legal representation,

● and the enduring violation of her and her daughter’s basic rights.

I now seek justice, transparency, and the reversal of orders made in error and without proper scrutiny.”

The amended grounds of appeal are as follows:

At the outset of the hearing today, in order to assist Ms Macpherson in presenting her case, Asplin LJ indicated that there were three issues for this Court to consider on the appeal:

In her written and oral submissions, the appellant advanced a case in line with that which she has pursued for a number of years. She maintains that the professional agencies dealing her daughter, and the courts, have ignored evidence for eight years. Her case, in short, is that, as the court has failed in its duty to protect her daughter from abuse, forced medication, professional collusion and institutional neglect, and wrongly proceeded on the basis that her daughter lacked capacity, the whole process was contrary to the Mental Capacity Act 2005 and the European Convention on the Protection of Human Rights and Fundamental Freedoms. It was her daughter whose rights were being infringed. In those circumstances, the injunctions were unlawful and therefore she was not acting in contempt of court by failing to comply with them.

Secondly. Ms Macpherson said that she had been entitled to act in the way she had because no one was listening to her and publishing information online was the only step she could take to protect her daughter. Her concern was to safeguard her daughter from further harm and, as all the professionals, including judges, had ignored her concerns, and all professional regulators to whom she had complained had brushed her complaints aside, publicity was the only option. Ms Macpherson referred to other cases in which the courts have allowed a party to publish information relating to their complaints about the way cases have been handled by the NHS, other professional agencies, and the courts.

Thirdly, Ms Macpherson insisted that she had done nothing wrong by posting video recordings of her daughter on social media. She said that she had ensured that FP’s identity was kept concealed – all the video recordings were carefully pixellated. She submitted that there was no evidence that she had caused any harm to FP by posting the video recordings, a fact which had been acknowledged by Poole J.

In my judgment, none of these points undermines the central point on this appeal – that Mrs Macpherson knowingly and deliberately broke an order made by the court. The fact that she profoundly disagrees with the order does not entitle her to disregard it. There is nothing to support her repeated assertions of professional misconduct. Her very strong views have been aired on many occasions in the proceedings, but for the most part have been rejected by judges on the evidence. There is no merit in her assertion that the orders were unlawful. The straightforward position is that she was obliged to comply with the orders and deliberately chose not to do so.

At various points in the hearing, Ms Macpherson suggested that this Court should watch the recordings which she had uploaded onto the internet. In my view, that is unnecessary. The order directed her not to make recordings of her daughter and not to upload them onto the internet. She flagrantly broke that order and the content of the recordings is irrelevant to the question of her culpability. In any event, there is no basis for questioning the judge’s assessment of the recordings as set out above, and the harm caused to FP which they demonstrate.

The fact that other litigants in other cases have been given leave to publish information about their family members who have gone through family or COP proceedings affords the appellant no assistance in this case. Her rights under Article 10 have no bearing on the outcome of this appeal. She was ordered not to publish information about her daughter and deliberately acted in contravention of the order.

On the second issue, when invited in court to identity ways in which the procedure adopted by Poole J had been unfair, Ms Macpherson cited only one point – that she had not been represented at the committal hearing in January 2024. It is clear from the judgment, however, that at the hearing on 22 January 2024, she did not ask for an adjournment to seek representation and was, in the judge’s words, prepared to argue her case. Having found her in contempt, the judge considered again whether he should adjourn to allow her to obtain representation, and decided against that course, for the reasons set out in paragraph 31 of his judgment recited above. In those circumstances, I do not consider that he acted unfairly. There is nothing to support the assertion in the first ground of appeal that the hearing proceeded without basic safeguards or essential documents. In the papers filed by Ms Macpherson in connection with this appeal, there are a number of other general references to the courts adopting unfair procedure, but none of them adds any weight to the assertion that the hearing on 22 January 2024 was unfair.

The third issue is the proportionality of the sentence. Ms Macpherson said that imposing a sentence of imprisonment on her would have an adverse effect not only on her daughter but also on her husband who is in poor health and requires care and support. On this point, however, I entirely endorse what the judge said in paragraphs 42 to 46 of his judgment, quoted above, which in turn complied with the legal principles summarised by MacDonald J on Re Dahlia Griffith (supra). In my view a sentence of immediate imprisonment was plainly right having regard to the appellant’s serious and repeated flouting of the order. She had already been given a suspended sentence on the earlier occasion for breaches of the order, and within a short space of time brazenly repeated the conduct during the period of suspension. Court orders must be obeyed, and although judges are reluctant to send someone to prison, particularly in the context of proceedings of this sort, repeated breaches of orders will almost invariably lead to custodial sentences being passed. The sentence of three months, with the activation of the earlier suspended sentence in addition, was in my view entirely proportionate and appropriate.

Many of the matters raised in the documents filed by the appellant reiterate her complaints about earlier decisions in the proceedings. None of the other matters raised in the grounds of appeal, or in the additional documents, or during the oral submissions put forward by the appellant assisted by her McKenzie friend, gives rise to any concern about the judge’s decision to commit the appellant to prison.

For those reasons, I would dismiss this appeal

I agree.

I also agree.