Devon County Council v Teresa Kirk  EWCA Civ 1221,  MHLO 51
"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 [the welfare determination], should not have been taken as justification for proceeding with the committal application. ... I end with a reminder to contemnors and their representatives of the availability of public funding. ... Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. ...The effect of [a Court of Appeal decision] is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings. Because this is criminal public funding, it can be ordered by the court. ... In the same way, criminal public funding is available in this court."
- Re M: Devon County Council v Teresa Kirk  EWCOP 42,  MHLO 50
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Devon County Council v Kirk
Sir James Munby P, Black , McFarlane LJJ
Contempt of court — Committal proceedings — Appeal — Defendant attorney refusing to comply with court orders regarding welfare of incapacitated person — Defendant found guilty of contempt and sentenced to imprisonment — Whether finding of contempt appropriate in light of defendant’s outstanding appeal against welfare order — Availability of public funding in contempt cases — Criminal Legal Aid (General) Regulations 2013 (SI 2013/9), reg 9
In September 2014 the local authority commenced proceedings in the Court of Protection under the Mental Capacity Act 2005 with respect to M, who lacked capacity to make decisions about his own care and welfare. M had signed a power of attorney appointing the defendant as an attorney both for health and welfare and for property and affairs under the 2005 Act and the defendant had moved him from his home in Devon to live with her in Sussex. An independent social worker’s report on the question of M’s future care recommended that he should return to live in a care home in Devon whereupon the defendant removed M, who was Portuguese by birth but who had lived in England for many years, to a care home in Madeira. After a welfare hearing the court in June 2016 made an order requiring the defendant to authorise M’s release from the care home in Madeira and repatriate him to the jurisdiction, and warning her that if she failed to do so she would be in contempt of court and could be punished by imprisonment or by fine. Following the defendant’s repeated refusal to sign the required authorisation, the local authority issued contempt proceedings against her. By the time the contempt proceedings came on for hearing the defendant had issued an application for permission to appeal the welfare judgment. The judge nevertheless found the contempt proved and imposed a sentence of six months’ imprisonment. The defendant was arrested on 26 September 2016 and imprisoned. She appealed against the committal order on the ground, inter alia, that the judge had failed to take any or proper account of the fact that she had, as a litigant in person, filed an appeal against the welfare order which remained outstanding awaiting receipt of a transcript of the judgment, and in particular that the judge had erred in ruling that he would ignore the outstanding appeal because the defendant had failed to ask for a stay pending the appeal.
On the defendant’s appeal against the committal order and the application for permission to appeal the welfare order—
Held, (1) appeal against the committal order allowed. In the present circumstances, where a party was facing the likelihood of a prison sentence for contempt, but where that party, whom the court accepted 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 premature for the judge to press on with the committal application. The absence of an application for a stay of the order, where it was almost certain that a stay would have been granted pending receipt of the transcript of the welfare judgment, should not have been taken as justification for proceeding with the committal application (paras 28–31, 39, 40).
(2) Permission to appeal against the welfare determination granted. Although difficult to identify a valid ground for challenge to the welfare judgment, the defendant might have an arguable appeal in relation to the order that followed on from the overall welfare determination in so far 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; and that it was arguable that the Court of Protection should have addressed the question whether it was in M’s best interests to make such an order and considered possible alternative methods of M’s repatriation without involving the defendant (paras 32–36, 39, 40). Per Sir James Munby P and McFarlane LJ. The circumstances of the case are 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 M 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 long-standing home and within a community where he is well known. Those stark facts plainly raise the question whether the court was justified, on the basis that it was in M’s best interests to do so, in making an order which placed the defendant in jeopardy of a prison sentence unless she complied with it (paras 27, 40). Per Sir James Munby P. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013 which covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings (para 52).
Decision of Newton J, Ct of Protection reversed.
Colin Challenger (instructed by LSGA Solicitors) acting pro bono for the defendant.
Louise MacLynn (instructed by Head of Legal Services, Devon County Council, Exeter) for the local authority.
Fenella Morris QC (instructed by Irwin Mitchell) for M, by his litigation friend the Official Solicitor.
Reported by: Jeanette Burn, Barrister
Sue Reid, 'Touching picture of sibling devotion that was BANNED until now: Pensioner who was jailed by a secret court can finally tell the story of how she tried to protect her brother because, shortly after these photographs were taken, he died' (Daily Mail, 13/2/16)†