Council need not pay costs for successful appeal

family law

A woman in her 70s who defied Court of Protection rulings has failed in her bid to secure an order for costs from Devon County Council for one of two appeals.

The woman in question had been appointed personal attorney to ‘MM’, an elderly gentleman who had developed dementia and lived at a care home in Devon. Not long after her appointment, she took him to Portugal, his country of origin, and set him up in another care home there.

The Court of Protection ordered the man’s prompt return to Britain but the attorney refused to provide the authorisation required by the Portuguese care home to release the elderly man. She was duly sentenced to six months in persion for contempt of court, and released after three by the Court of Appeal.

Family Division President Sir James Munby said the case had caused him “significant concern”. The 71 year-old had, he explaiend “been acting on the basis of deeply held, sincere beliefs as to the best interests of MM for whose welfare she is… genuinely concerned.”

Following her release, the woman’s case returned to court in January. She had appealed against the original ruling requring her to authorise the release of MM from the care home in Portugal.

Sir James ruled in her favour, saying he did not believe any further time in prison would persuade the septuagenarian to change her views on the issue. The decision had troubled him, said the President, but it was well recognised, he continued, that

“…there will come a point when even the most obdurate and defiant contemnor has to be released, despite continuing non-compliance.”

In a newly published judgement, the President has now turned his attention to responsiblibity for the costs of the two successful appeals.

The attorney sought an order for costs against Devon County Council, who had intitiated the legal action which led to her eventual imprisonment.

Sir James explained:

“[The attorney] seeks orders in relation to both appeals against Devon County Council, essentially on the ground that she was, as she would have it, wholly successful in both appeals.”

Set against this, however, was “the irrefutable fact that [her] behaviour throughout has been defiant of the Court of Protection and its orders.”

In his judgement, Sir James set out the arguments put forward by the Council’s barrister in relation to the second appeal, against the order to authorise MM’s release.

“As [the barrister] puts it, the utility of the original order had been simply outflanked by [the attorney]’s conduct. … [He] submits that the magnetic factor in relation to costs remains [the attorney]’s defiant and egregious conduct in removing MM from the jurisdiction when independent expert evidence was filed that did not support her case and her determined and wilful resistance to compliance with the orders of the Court of Protection to facilitate or assist in MM’s return. It is, he submits, simply unconscionable for Devon County Council to have to make any contribution to her costs given the fact that all the costs in the litigation from the time of MM’s removal derive from that unlawful act and her defiance of the orders of the court. It is, he says, unfair and contrary to public policy for a local authority to be “punished” by way of costs for seeking properly to discharge its duties to a vulnerable adult.”

Sir James agreed that the order had become had “become redundant, given the fact of Ms Kirk’s continuing obduracy.”

Consequently he ordered that Devon County Council should only be responsible for the costs relating to the first appeal.

Read the full ruling here.

Photo by Philippe Put via Flickr under a Creative Commons licence

Stowe Family Law Web Team

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1 comment

Mrs. K. Danby - April 24, 2017 at 4:39pm

It should be recognized that Mrs. Kirk was the legal representative of her brother, and as such she was entitled to act in his best interests.

The Court of Protection should not interfere in these matters. It is not the first time they have done this, and with the same tragic outcome – the previous one being with Wanda Maddocks. They have too much authority, and it is time they were made to realize that in making these kind of decisions on the part of people they consider to “lack capacity”, they are splitting families and causing untold misery for the people concerned. We may as well be in a Nazi state, the way they behave, and it should not be tolerated.

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