Family law President considers contempt ruling

Family Law|February 2nd 2017

Family Division President Sir James Munby considered the value of prison sentences for contempt of court in a new ruling.

This complex case concerned a woman who had been appointed personal attorney for an elderly man who had developed dementia. Referred to as ‘MM’, he lived at a care home in Devon but was Portuguese by birth.

After her appointment, the attorney unilaterally took MM to Portugal, without consulting anyone, and set him up in a care home in that country. Devon County Council promptly began legal action, and the Court of Protection ordered MM brought back from his native country, on the grounds that he would be better off in the familiar surroundings of England. But the Portuguese home which now cared for MM refused to release him without specific written authorisation from the attorney. She was ordered to provide this but failed to do so and the 71 year-old was duly sentenced to prison for contempt of court.

Her sentence was six months but she was released after three following an ruling in the Court of Appeal. At the time, Sir James remarked:

“I am bound to record that I find the circumstances of this case to be of significant concern. The Court of Protection has sentenced a 71-year-old lady to prison in circumstances where the lady concerned is said to be of previous good character and where, as the judge acknowledged, she has been acting on the basis of deeply held, sincere beliefs as to the best interests of MM for whose welfare she is… genuinely concerned.”

Before her committal, the attorney had lodged an appeal against the original order that she must provide authorisation. That finally came before Sir James earlier this week. The President approved an order setting aside the original ruling, saying there was no “real reason to believe that a further dose of this medicine [i.e. prison] might induce compliance” and continuing punishment would be “an exercise in futility”.

He went to remark that:

“On one view of the matter, [the attorney] has achieved her objective by remaining adamantly obdurate in the face of the court’s orders; and the court now is simply caving in to her demands. It is a point which has troubled me.”

But, the President continued:

“…it is well recognised that there will come a point when even the most obdurate and defiant contemnor [person guilty of contempt of court] has to be released, despite continuing non-compliance.”

Therefore, he insisted, “…it is important to note, the court is not caving in at the first sign of obduracy”.

“[The attorney] remains seemingly determined on her course despite having been taken to prison and, indeed, despite having spent some seven weeks incarcerated in what must for her have been most unfamiliar and very unpleasant conditions.

The full judgement can be read here.

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