New prison threat for gran who was jailed over a hug:  Pensioner could be locked up again after helping her granddaughter to escape from a care home

• Court order prevents contact between Kathleen Danby and granddaughter
• In 2014 Mrs Danby, 74, was sent to jail after being caught embracing her 
• She is now accused of assisting 20-year-old’s escape from supervised flat 

This is the headline of a Daily Mail article this week (read full article here) concerning Kathleen Danby, the grandmother of a vulnerable young woman, now aged 20, but who was previously the subject of care proceedings and later Court of Protection proceedings.

The article is inaccurate.

To save time, you can read Lucy Reed’s blog post about the history of the Danby case on Pink Tape here. That was written in January 2015 shortly after Mrs Danby was arrested when she stepped back into the jurisdiction of England & Wales, having been sentenced for contempt of court to a period of 3 months imprisonment for breaching orders made in the CoP proceedings restricting her contact to her granddaughter. The 2015 blog post highlights the inaccurate and misleading reporting of this case by The Daily Mail amongst others at that time (You can also read Suesspicious Minds earlier blogs about the case here).

The Daily Mail article this week states that Mrs Danby’s 3 month sentence of imprisonment was quashed. We don’t think this is right. As far as we can tell from the four published judgments in the case, the sentence of imprisonment was not quashed, because Mrs Danby did not challenge it by attending court (it is possible that there are other subsequent judgments on the Judiciary website that reveal a subsequent quashing, but unfortunately the judiciary website has no sensible search functionality and we have been unable to locate anything. In any event, we would expect any fifth or subsequent judgment to be published on BAILII in line with the others, particularly an appellate decision of the Court of Appeal (which this would have been).

The recent Daily Mail article repeats the previous misleading suggestion that Mrs Danby was jailed “for hugging” her granddaughter. It is clear from the four judgments that the behaviour of the grandmother was far more extensive than a simple benign hug. The court judgments set out that there was a pattern of intentional conduct on the part of the Father and Grandfather which was undermining the stability of this young woman’s life and placement at a critical time for her future.

Although the article itself does make clear that after the young woman escaped from her supported accommodation, Mrs Danby put her granddaughter up for a night in a hotel before bringing her to Scotland, it does not set that against a context involving a pattern of the family evading sanction for breaching the orders of the court by withdrawing to Scotland, which is not within the jurisdiction of the courts in England & Wales – and that in assisting an incapacitous young adult to leave the jurisdiction in breach of order (presumably now Court of Protection orders) she is in effect facilitating an abduction to a location where the family must know it would be practically difficult for the English court to recover her from.

It’s not quite clear what the arrangements in the woman’s accommodation were – the article suggests both that it is “supervised”, but also that it is “supported living”, whilst the woman is described as taking her chance when seeing an open door – yet strangely she reports that no one came after her. Although ex-MP John Hemming is quoted talking about cases involving a deprivation of liberty, it is unclear if there was any actual deprivation of liberty in this case. It is unclear what the relevance of Mr Hemming’s reference to “secret prisoners” is, in a case where historically most of the judgments concerning this young woman have been published (of course if there are unpublished judgments we wouldn’t know).

The article apparently quotes the young woman herself, but it is unclear if she has given an interview to reporters or if her comments have been provided via a third party such as Mrs Danby or her son, the woman’s father.

Mrs Danby is reported as challenging the suggestion that the young woman lacks capacity to make her own decisions. From the background it is highly likely that the Court of Protection has continued to be involved and that she continues to lack capacity as she did as an adolescent. In any event, the responsible Local Authority will have been under a continuing duty to assess whether the young woman has gained capacity in some or all areas.

Mr Hemming says

It is unclear what good it is doing to keep Mrs Danby’s granddaughter away from her family. There is a major injustice in this case and if legal action ensues from Derbyshire County Council, I will ensure an appeal gets to the Court of Appeal to end this oppression.

With respect to Mr Hemming, if the position remains as described in the judgments from 2014 it is quite clear what potential benefits the restrictions would be providing to the woman. If circumstances have materially changed I would expect the Official Solicitor to take action on the woman’s behalf (unless she has regained capacity). We do not presently know what precipitated this young woman from running away – it may have been the regime at the home in which she was living and her general unhappiness at being kept away from family (as reported in the article) or it may be a good deal more complicated than that. It certainly was back in 2014-15. We would expect any judgment arising from a committal application (if it happens) to be published, at which point we will all be able to form our own views about this difficult case.

Mr Hemming appears to be set upon getting the matter to the Court of Appeal in order to make his points. Unless and until the court is re-involved, a judgment is delivered AND Mr Hemming (or some other person in the case) identifies an error of law that renders the decision “Wrong” or a material procedural deficiency in the trial process that can properly found the basis of an appeal – then there can be no appeal. Traditionally, it is considered sensible to wait until a court makes a decision and gives its reasons before deciding upon whether to pursue an appeal and the insistence at this stage that an appeal will be followed suggests that this case has the potential to become a vehicle for a broader campaign or bigger issue, rather than being driven by the best interests of this particular vulnerable young woman, who has previously been significantly destabilised by court proceedings of which she has been aware.