MM (A Patient)

A court should ordinarily make an otherwise proper order despite anticipated disobedience. It should not, however, continue coercive orders when compliance is realistically unobtainable and further enforcement would be futile. Where a mandatory order has become otiose and the appeal against it is academic, an appellate court may approve a consent order setting it aside without deciding whether it was originally lawful or correct. A current assessment of the incapacitated person’s best interests should then be undertaken at first instance if circumstances have materially changed.

MM was an elderly man lacking capacity. He had been removed from England to Portugal by the appellant. The Court of Protection had concluded that his best interests lay in returning to Devon. Baker J made a mandatory order requiring the appellant to execute an authority enabling that return: [2016] EWCOP 45.

The appellant refused to comply. In an earlier appellate stage, the Court of Appeal granted permission to challenge the mandatory order and stayed it: [2016] EWCA Civ 1221. Before the substantive appeal, all parties agreed that the order could no longer secure MM’s return, that it had become otiose, and that his present best interests required fresh consideration. They sought approval of a consent order under CPR PD52A para 6.4.

The issue was whether the appeal should be allowed by consent without deciding the merits of the original mandatory order.

Appeal allowed by consent. Paragraph 7 of Baker J’s order was set aside. The court did not determine whether that provision had originally been lawful or correctly made.

1. The proposed consent order was appropriate because the appellant’s sustained refusal meant that the mandatory authority was no longer an effective means of securing MM’s return. The provision had become otiose and an appeal on its merits would be academic. Approval was also in MM’s best interests.

2. The ordinary rule remains that courts expect their orders to be obeyed. They do not normally withhold an otherwise proper injunction merely because a respondent predicts non-compliance. The court referred to In re Liddell’s Settlement Trusts, [1936] Ch 365, Re J, [2013] EWHC 2694 (Fam), and Re Jones (No 2), [2014] EWHC 2730 (Fam). The normal course is to make the proper order and later assess any alleged inability to comply.

3. That principle has limits. A court is not in the business of making futile orders. The principles illustrated by In re Barrell Enterprises, [1973] 1 WLR 19, and Enfield London Borough Council v Mahoney, [1983] 1 WLR 749, recognise that continued coercion must eventually cease despite persistent non-compliance. The appellant had already endured seven weeks’ imprisonment, yet remained determined not to comply. There was no real prospect that further coercion would succeed within an appropriate period.

4. The Court of Protection was to reconsider MM’s current best interests and promptly resolve his finances, residence, reporting restrictions and outstanding costs. Costs of the appeal were to be determined by written submissions. The President also observed that, in future cross-border cases, it may be worth investigating whether a foreign state would recognise and enforce a Court of Protection order or an authority executed by a deputy or court officer.

• Court of Appeal (Civil Division) — Allowed the appeal by consent, set aside paragraph 7 of Baker J’s order, and remitted remaining welfare matters to the Court of Protection: [2017] EWCA Civ 34.
• Court of Appeal (Civil Division) — At an earlier stage, granted permission to appeal the mandatory order and stayed it: [2016] EWCA Civ 1221.
• Court of Protection — Baker J concluded that MM’s best interests lay in returning to England and made the mandatory authority order challenged on appeal: [2016] EWCOP 45.