Re M [2016] EWCOP 42

An application for committal for the failure of Ms K to comply with paragraph 7 of the order of Baker J 20th June 2016.
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Contempt proceedings were issued by the applicant 

Background
MM is an 80 year-old man who had lived in the South West for over 50 years, but was originally born in Madeira. He suffered from vascular dementia and previously the court had made final orders in relation to his capacity. Lengthy proceedings had been instituted by the local authority in 2014 after Ms K had removed him from his home and taken him to her home in Sussex. Subsequently Ms K removed him from the jurisdiction and took him to Madeira, notwithstanding that an independent social worker had advised it was in MM’s best interest to live in a care home in the south-west.

In 2015 Pauffley J made orders that MM was to be returned to the jurisdiction by 30.6.15. Ms K did not do so. Mostyn J made further orders for the return of MM in September 2015 as soon as MM was declared medically fit to travel. Ms K did not comply with either order and indeed in September 2015 after the hearing she placed MM in a care home in Portugal - he having spent the previous month in hospital.

Baker J directed that further evidence be adduced in relation to MM’s best interests given the time lapse since the original orders were made in 2015. On 10.6.16 Baker J heard evidence from all parties and determined that it was in MM’s best interest to reside in a care home in the south-west. On 20.6.16 Baker J considered the full order which had been drafted and served upon Ms K , which contained a penal notice.

The court went on to make declarations. Firstly, that MM lacked capacity. Secondly, that it was in his best interests to live in England, in the area of the South West. Thirdly, that it was not in his best interests to continue to reside at the care home in Portugal; and further ordered at paragraph 7 that, no later than 4pm on 27 June 2016, Mrs. K shall provide to the Local Authority 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.  Permission was given at paragraph 18 to serve this order on Mrs K by email. 

Decision 
The court stated: “The short point about that provision in the order is that it provided for Mrs. Kirk to sign the written declaration of authority so that MM could be released to the local authority. The  order had a penal notice attached to it, the recitals were very  clear. Mrs. K was present in court. It was self-evident and overwhelmingly obvious that Baker J explained to her precisely the meaning and terms of the order.  It was not in any way complicated; there was no room for misunderstanding. That order was subsequently served on her formally by email on 27 June 2016 at 9.33.”

The order had not been complied with; the authority had not been signed by Mrs. K. Ms K had been seen on at least 3 occasions about this issue and she  made it abundantly and unequivocally clear that she had no intention of signing the authority, and would not do so because of her strongly held beliefs that the court was wrong, and she was right. 

Whilst she had appealed the order, no stay been applied for and therefore the order of Baker J the court stated that the order must be complied with. The court applied MASM v MMAM [2015] EWCOP 3, and the helpful checklist of Theis J, which appears in Re A [2016] EWCA Civ 173. 

The court took the view that it had no option other than to impose an immediate custodial sentence of six months’ imprisonment, taking into account the authorities and her limited means, but suspended the warrant for a period of seven days only to give Mrs K one last chance to comply. The court urged her to comply, stating: “If she changes her mind and signs the authority within seven days, the warrant will not be executed and I shall suspend the sentence for a period of 12 months. If she does not she will go to prison. If Mrs K subsequently complies with the order, the matter should be immediately restored on an application to purge her contempt. What happens next is in Mrs K’s hands.”  

Comment 
A robust decision, and one arguably which should have been made some considerable time ago given that two previous High Court judges - namely Pauffley J and Mostyn J - had made the decision that it was in MM’s best interest to reside in a care home in the South West. Many may wonder why it took so long for a committal application to have been made, particularly given the frailty of MM and his advanced age. Time was and is not on his side.
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It also reminds practitioners as to the burden and standard of proof - the criminal standard is to be applied. It reminds all people appearing before the Court of Protection that orders of the court must be obeyed and if they are disobeyed there are sanctions. The court will not hesitate in appropriate cases to impose an immediate custodial sentence.

Read the full text of the judgment on Bailii