This week Christopher Booker, chose this as his topic for his Sunday Telegraph column :
This is of course a very worrying headline. The article itself is also likely to raise concern about this secretive court, that goes about locking up poor defenceless grannies.
Mr Booker says the tale is “strange and shocking” and describes the Court of Protection as “shadowy”. However, Mr Booker seems not to have noticed (or has chosen not to say) that since earlier this year the Court of Protection has been holding many of its hearings in public under a “transparency pilot”. The pilot has been extended – initial signs are that the press have rarely taken the opportunity to go and expose the shadowy workings of the secret court (that sits in public).
The hearing at which the granny was locked up is a type of hearing called a committal hearing (where a judge decides if there has been a breach of an order or contempt of court and if so whether he should commit someone to prison as punishment). This type of hearing is ALWAYS held in public and the judgment explaining what the judge has done and why is ALWAYS published.
In another article about this case co-authored by Mr Booker (Grandmother, 71, sent to top security jail after refusing council’s demands over care) he says, quite wrongly, that:
It is the latest in a series of controversies surrounding the Court of Protection, which sits largely in secret but which must publish details of any case in which it imprisons someone.
As we have explained, the Court of Protection does not sit largely in secret – it sits largely in public. Even in those cases not held in public the press may ask to sit in and listen, and if they think it is a matter of public interest to ask to report the case.
To be fair to Mr Booker, the case he is writing about was initially concluded in 2015, and so it is unlikely that the hearings back then were in public or that any judgment will have been published (we can’t identify one that matches the case number or facts) – so we have limited information about the early stages of the case. But the article is more than likely based primarily upon a reading of the committal judgment, which does contain some illuminating information and can be found here : Re M  EWCOP 42 (18 August 2016).
We have written briefly about this judgment and some of the coverage here : The Court of Protection’s not so secret anymore, but the press don’t seem to have noticed.
From the judgment we can see the following :
- That the case began in 2014 when Mrs Kirk (the grandmother) removed 80 year old M from his home in the south west to Sussex, presumably because the local authority were worried about this not being in the best interests of M.
- In April 2015 the court determined that due to his vascular dementia M did not have the capacity to make decisions about his residence and care.
- The case was live and was transferred to the High Court in April 2015 when it became clear Mrs Kirk had taken him out of the country to Portugal. (It seems likely the move was a response to the decision about capacity but the judgment isn’t clear about that).
- Mrs Kirk was ordered to return M to the UK as long ago as last July. She has been ordered to return him a number of times since, most recently on 20 June this year when Mr Justice Baker ordered her to sign documents to enable his return. Mrs Kirk was told at that point about her right of appeal. She did not appeal (even though according to Mr Booker she disputed that the “best interests” decision was correct).
- In June this year when Mr Justice Baker refreshed the orders for return of M, he had taken steps to update the information that the court had about what was best for M. and he decided that a return to the South West remained in M’s best interests.
- The committal hearing took place on 18 August 2016.
- Mrs Kirk accepted she had breached the order and was defiant about it.
- When the judge made the order for committal to prison for 6 months, he gave Mrs Kirk a 7 day grace period to allow her to comply, when he would then suspend the imprisonment. We now know she did not take that opportunity, and (according to the Telegraph) was arrested under the warrant in September.
So, with that in mind, how accurate does the article about the case appear to be? Not very. It says :
Her only offence was to have refused to sign a letter she regarded as “quite improper”, authorising British social workers to remove an 81-year-old man from Portugal, his native country, to bring him back to England against his wishes.
- It is clear that she was in breach of a number of orders over a period of more than one year. She had several opportunities to comply with the order.
- Although it is correct to say that the man had been born in Madeira (not mainland Portugal where he now appears to be), the sentence above is misleading since it does not mention that the man had lived in the South West for 50 years (as stated in the judgment).
- The judgment doesn’t tell us about what M’s wishes are, but it is clear he is unable to make good decisions due to his illness and that he is very frail, having been hospitalised during his stay in Portugal. What Mr Booker does not mention is the key fact that the job of the Court of Protection is to make decisions in the best interests of the person who lacks capacity – this will often be consistent with their wishes, but not always. There are all sorts of reasons why an incapacitated and vulnerable person might voice particular wishes that are not in fact what they want or are not in fact in their best interests.
- It is a shame we don’t have more information about the substance of the case, but we would not usually expect to see this in a committal judgment. It is likely there were judgments in April 2015 and June 2016, but these do not appear to have been published. It would be helpful if they were, as we could better understand the rationale for the judge deciding that M should come back to this country. We do know that M was well settled here before his move, with a good network of friends. It seems likely that he is more isolated in Portugal, although the Telegraph report he has made friends. Either way, the High Court will have had evidence about all of this before deciding that it was better for M to be back in the UK.
Next quote :
He had travelled to Portugal quite legally, and the UK courts have no power to order his return to Britain. The woman took him to Portugal in 2015, because he was suffering from dementia, and within months had settled him in a very well-run and appointed care home.
Only after he left England did the local authority where he had lived for many years bring his case to the High Court.
Again, not accurate :
- It is difficult to say whether the move to Portugal was legal. Certainly, the Court of Protection was dealing with the matter, at the time of the removal and whether or not any orders were in place at the time of the move, it is likely that Mrs Kirk would have known that the court would not expect M to be removed from the country to frustrate the court and local authority doing its job. It is entirely unsurprising the matter was sent to the High Court in those circumstances as the court had decided that M was vulnerable and lacked capacity. Mr Booker says that the woman had power of attorney but the judgment does not mention this. We are surprised that if she did have power of attorney the judgment omitted this fact. Booker says :
The woman, who had power of attorney over his affairs, had put his house on the market, which would have provided enough funds to cover the care home fees.
But the local authority, having got a court ruling that the man lacked “mental capacity”, blocked the house’s sale, so that it and all his financial affairs could be passed to the control of the Official Solicitor.
From this it appears that what was probably going on in this case was that the local authority was concerned that Mrs Kirk, who may indeed have held power of attorney for some period, was not making good decisions on behalf of M, in terms of his welfare or his property or both – and this is probably what prompted the start of the court case in 2014. It is unclear at what point the Official Solicitor was appointed to look after M’s affairs.
Mr Booker asks :
So what has been achieved by a case which must already have cost hundreds of thousands of pounds? The grandmother is in prison, the man is still living happily in Portugal where the authorities cannot touch him, but his family are having trouble paying his fees because his financial resources have been seized by the British state, much having already been spent on his legal fees.
Yet again this bizarre story raises questions about the Court of Protection which call for very serious answers.
It appears likely that the case will have cost many thousands of pounds (it is unclear whether it will have cost quite as much as Mr Booker guesstimates). From the information we have it seems clear that a significant portion of the costs incurred will have arisen due to the actions of Mrs Kirk in defying the orders of the court and refusing to cooperate. When Mr Booker says that M’s financial resources have been seized by the British State, he is probably referring to the fact that the court has ordered M’s affairs should be managed by the Official Solicitor NOT Mrs Kirk, who the court evidently does not feel is capable of acting in M’s best interests, despite her belief that she is doing just that. It is clear that Mrs Kirk would seek to sell M’s home, and to use the fees on paying for his care in Portugal. The court may be attempting to preserve that asset so that M can return to live in it, or so that his care fees can be met from the equity in a care home in the South West.
Although the hearing was in mid August, the judgment was only published in mid October, which exactly coincides with the publication of news articles about this case, including those we have highlighted here. This is a strong indicator that a) the press had chosen not to attend the public hearing in August (otherwise they would have reported it at the time or when Mrs Kirk was arrested in September) and b) that they were able to report the matter precisely because the court openly published its judgment, which prompted the article and their further enquiries of family members, and which has clearly been used as the basis for the article.
We think it is interesting, in view of its criticisms of the court for being secretive, The Telegraph choose not to give their readers the link to the judgment so they can read it for themselves, and that they choose to anonymise the grandmother, even though she is named as Mrs Kirk in the judgment. They do however choose to identify the Local Authority that they say was involved, and the geographical location of M’s former home more closely than is in the published judgment, in spite of the court having evidently made a decision to anonymise those details, probably to protect M’s privacy. It is clear that the journalist has had some contact with the family because there is a reference to Christopher Booker having spoken to M’s brother in law “last week”.
We don’t cover many Court of Protection cases, but Mr Booker writes about both Family Court and Court of Protection cases, and makes similar criticisms of each. Mr Booker also refers to two other Court of Protection cases, that of Wanda Maddocks and Kathleen Danby – and in each instance Mr Booker has made much of the fact that they are grandmothers, and of their age. We think we ought to point out that many people are imprisoned by the courts for breach of orders or contempt of court, and that they will be from all walks of life, and of all different ages – and on occasion these will be grandmothers or elderly people. Last time we checked, grannies are still subject to the same laws as the rest of us.
The case of Wanda Maddocks was a committal from as far back as 2012 (you can read it here: Stoke City Council v Maddocks & Ors  EWCOP B31 (31 August 2012)). Like this case, it appears to be a case of someone taking the view they are right and the Court of Protection is wrong. However, unlike this case, it took place before the guidance was issued making clear that ALL committal hearings must be held in public and the reasons published in a judgment.
We wrote about Kathleen Danby here (summary : the articles by Mr Booker about that case were misleading and inaccurate).
Mr Booker also draws a parallel with the “secret” case of the Italian C-section which our Lucy Reed covered at the time in a series of posts here (summary : the articles about that case were misleading and inaccurate). We are not sure what the connection is to this case, other than the allegations of secrecy and the fact that it (initially) involved the Court of Protection.
In the past it may have been more legitimate to criticise the Court of Protection and Family Court for “secrecy”. However, we think it is reasonable to expect journalists to acknowledge changes in practice that have taken place in the last few years, just as we think it is reasonable to acknowledge that there is still a long way to go before full transparency is really achieved. This article significantly overstates the extent to which the Court of Protection can properly be called “secret”. If Mr Booker is looking for the “most secret court” in his headline, he could consider writing about courts like the SIAC for example.
[UPDATE 9 Nov : The Daily Mail reports today that yesterday (8 Nov) Mrs Kirk’s appeal against her imprisonment was allowed and she was released. You can read their article here. A judgment is not yet available on BAILII but we will link to it when we are able. The article records that the judges in the Court of Appeal said that the system had failed Mrs Kirk and her imprisonment had been “mechanical” but they have not yet given their full reasons. Mrs Kirk will now appeal the main decision. The article says that :
Details of the Court of Protection case were kept secret and her sentence was only made public two months after her sentencing when the Daily Mail made enquiries. The secretive court rules on issues relating to people who might lack the mental capacity to make decisions for themselves.
We had already identified the delay in publication of the judgment, which coincided with the Telegraph’s coverage of it. The Mail’s original article (which we hadn’t spotted at the time) tells us that “A spokesman for the Courts and Tribunals Judiciary said the online judgment had been held back from publication ‘so an error could be amended’”, so it appears that the judgment was in the process of being prepared for publication in any event, and was probably sped up rather than being produced only because of the enquiries of the press – although it ought not to have been so long as two months in any event. According to the Mail, the President of the Family Division (who sat on the appeal) was critical of this delay – and rightly so. Guidance issued by the President makes very clear that this sort of judgment must be published straight away.
Former MP John Hemming is recorded as saying that the prison service prevented Mrs Kirk from signing her appeal paperwork, which if accurate is also very concerning.]
[Update – 8 December 2016 : We’ve published a further updating post here now that the judgment explaining Mrs Kirk’s release from prison has been published : Why the Court of Appeal released a grandmother imprisoned for disobeying orders of the Court of Protection.