We have previously written about the case of MM (an incapacitated adult living in Portugal in a care home) and Mrs Kirk, who was imprisoned for refusing to assist the court with his return to be cared for back in Devon where he had previously been living.

Our first post, when the matter first hit the press, was here :

The terrifying tale of how Britain’s most secret court imprisoned a grandmother (AKA Court enforces its own orders and publishes judgment for the world to see)

Subsequently, we wrote a further post, explaining subsequent events and in particular the judgment given by the Court of Appeal on 5 December, prior to which they had released Mrs Kirk from prison. You can read that post here :

Why the Court of Appeal released a grandmother imprisoned for disobeying orders of the Court of Protection

At that time the Court of Appeal granted Mrs Kirk permission to appeal against the original order made by Baker J, the Court of Protection judge who had decided that it was in the best interests of MM to return to Devon. The Court of Appeal has now published its decision and reasons on that appeal. You can read the full judgment here :

MM (A Patient) [2017] EWCA Civ 34 (30 January 2017)

Although it now looks as if this case is drawing to a close, it has not yet finished – the Court of Appeal, whilst allowing the appeal, have sent the matter back to Baker J for him to wrap it up. The parties all agreed to this course of action.

Some of the things left outstanding are the management of MM’s financial and property affairs, the reporting restrictions and whether the identity of MM can now be revealed (the judgment tells us it has been made public in Portugal, and final declarations as to where MM should live). We can expect to see a further judgment from Baker J on this case covering these matters in due course.

So what did the Court of Appeal actually decide?

Somewhat unusually the judgment is a single judgment of The President sitting alone, and is marked as having been dealt with on paper (this means the parties will have sent in written submissions and the court will have made a decision without further hearing). In this case the parties had applied for the Court of Appeal to resolve the appeal by consent, and the rules allow for this sort of application to be dealt with without a hearing (Civil Procedure Rules Practice Direction 52A para 6.4).

It may seem surprising that the parties had reached a position of agreement given the history of the matter; in fact Mrs Kirk’s position had not changed, but the view of the Official Solicitor had changed, having received advice from barrister Victoria Butler-Cole, which in effect identified the following key points :

• the best interests decision (the decision that MM would be better off in Devon) was now arguably out of date anyway – if it was to be relied upon his ability to travel and other factors would need reassessing before it could be said with confidence that it remained in his best interests to be brought back
• Mrs Kirk was plainly never going to assist the court in achieving its objective of return, even if the court did conclude that it remained better for MM to come home
• The court’s couldn’t really do anything about it – it was now clear that sending Mrs Kirk back to prison was unlikely to work, and the court basically had no more weapons in its armoury
• Whilst all this is ongoing MM’s money is being spent on the litigation.
• There weren’t really any viable alternative routes to achieving the desired result such as litigation in Portugal or international treaties that might help.

In short, the case has become a great big waste of time and money. MM’s money.

And “Ms Kirk has successfully thwarted the court process so that the continuation of these proceedings would be futile in furthering the best interests of MM.”

Naturally, The President is not very keen on admitting defeat in the face of obdurate refusal to comply with orders. But he was persuaded that Ms Butler-Cole’s view was ultimately the right one and allowed the appeal in the terms proposed. The matter now goes back to the Court of Protection for a reconsideration of the welfare matters, with the expectation that it will no longer be possible to say that it is in MM’s best interests to be the subject of further proceedings attempting to procure his return.

There is an outstanding issue as to who should pay the costs of various aspects of the appeal. The President will deal with that on paper – we may see a further judgment on this aspect in due course too.

He also noted that in other cases it may be that proceedings CAN be brought abroad and used effectively to secure return, and that international conventions may be of application and use.