Devon County Council v Kirk

Where a person faces imprisonment for breaching an order that is itself the subject of a pending application for permission to appeal, the court must consider whether committal is premature. The absence of an application for a stay does not by itself justify proceeding. Relevant considerations include the urgency of enforcement, the substance and procedural progress of the proposed appeal, and whether a stay would probably have been granted.

A Court of Protection welfare assessment may also need to address the coercive means required to implement a proposed move. It may be relevant whether implementation would require imprisoning a person whose interests the protected person would be expected to value, and whether practicable alternatives exist.

The Court of Protection determined that MM, an elderly man with dementia who lacked capacity, should return from a Portuguese care home to Devon. Baker J ordered his attorney, Teresa Kirk, to sign the authority required for his release. Although she had applied for permission to appeal the underlying welfare decision, she neither complied nor obtained a stay.

Newton J found her in contempt and imposed six months’ imprisonment, after allowing seven days for compliance. She continued to refuse and was imprisoned. She appealed against committal.

The central issue was whether the judge should have proceeded with committal while her application for permission to appeal the underlying order remained outstanding. The court also considered whether to permit an appeal against the mandatory order used to implement the welfare determination.

1. Appeal allowed. The committal order was set aside and Mrs Kirk was released immediately. Although non-compliance was admitted, the court had acted prematurely by proceeding with committal while her application for permission to appeal the underlying welfare order remained unresolved. The pending appeal required further clarification before a sentence of imprisonment was imposed: per McFarlane LJ, with whom Black LJ and the President agreed.

2. The absence of an application for a stay did not justify proceeding. A stay would almost certainly have been granted at least until the transcript of the welfare judgment became available. Had a stay existed, the committal application would not realistically have proceeded. Urgent cases may nevertheless require committal despite a pending permission application, so the court declined to formulate an absolute prohibition.

3. Permission to appeal against the substance of the welfare determination, as then formulated, was refused because mere disagreement with the judge’s conclusions disclosed little prospect of success. Permission was granted against the mandatory orders on two arguable grounds. First, the Court of Protection may have needed to consider whether MM’s return remained in his best interests if it could be achieved only by threatening imprisonment of a person whose interests he would be expected to value. Secondly, it was arguable that alternative methods of repatriation should have been investigated. The mandatory order was stayed and the appeal expedited.

4. The President additionally emphasised that prisoners have a constitutional right of access to the court. Unjustified interference with communications between a prisoner and solicitor, or obstruction of a legal visit, may amount to contempt. He also confirmed that criminal public funding is available for contempt proceedings, whether the contempt is criminal or civil and whether it arises in criminal, civil or family proceedings.

1. Court of Appeal (Civil Division): The appeal against committal was allowed and the committal order was set aside. Permission to appeal the substantive welfare determination was refused as then formulated, but permission was granted concerning the mandatory orders. Those orders were stayed pending an expedited appeal.
2. High Court, Court of Protection (Newton J): Mrs Kirk was found in contempt for failing to sign the required authority. She received six months’ imprisonment, subject initially to a seven-day opportunity to comply.
3. High Court, Court of Protection (Baker J): The court determined that MM should return to Devon and ordered Mrs Kirk to sign the authority required to secure his release from the Portuguese care home.