The senior family judge has insisted the Court of Appeal has not ‘caved in’ at the ‘first sign of obduracy’ following the release of a 71-year-old jailed for contempt.
Sir James Munby this week approved a consent order setting aside a provision made in a Court of Protection order last year that required Teresa Kirk to provide Devon County Council with a signed written declaration of authority in relation to MM, an elderly man who lacks capacity. Her failure to comply with that provision led to her imprisonment for contempt.
This week’s Court of Appeal judgment states that MM was born in Madeira but lived in the UK for many years. He had been removed to Portugal, where he remains, by Kirk. A number of judges found that his best interests would be served by his return to his familiar surroundings in the UK.
The judgment states that Kirk failed to comply with the order made in June 2016 and refused to sign the required document. The local authority then applied for her committal. In August Kirk was found guilty of contempt and sentenced to six months in prison. The committal order was quashed by the Court of Appeal in November and Kirk was released from prison.
In this week’s judgment, Munby felt compelled to say more on Kirk’s failure to comply with the court.
He said: ‘On one view of the matter, Ms Kirk 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, whatever her reasons may be for the stance she has adopted (a matter which there is no need for me to explore).
‘I am persuaded, however, that this is not a reason why, in the particular circumstances of this case, I should refuse to approve the consent order.’
Munby said it is well recognised that ‘there will come a point when even the most obdurate and defiant contemnor has to be released, despite continuing non-compliance with the court’s order’.
In Kirk’s case, ‘it is important to note, the court is not caving in at the first sign of obduracy’. Munby said. ‘Ms Kirk 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.
‘Is there any real reason to believe that a further dose of this medicine might induce compliance within the kind of time it might be appropriate… to require her to serve? I very much doubt it.’
‘Further attempts at coercion are most unlikely to be successful. Pressing on hitherto is likely to be an exercise in futility. In the circumstances the consent order marks out the appropriate way forward.’
Quashing the committal order last month, Munby questioned in the judgment whether Kirk could have been released earlier if the official solicitor still had responsibilities in relation to contemnors.
A direction requiring the official solicitor to review all cases of those committed to prison for contempt of court and report back to the lord chancellor was revoked in November 2012 by the then lord chancellor, Chris Grayling.
Munby said: ‘As can be seen, the process of quarterly review by an officer of the court, instituted in 1830, continued until 2012. It served contemnors, and more generally the system well. Not the least of the merits of the involvement of the official solicitor was the fact that he was not dependent upon instructions from the contemnor and indeed could, and did, act even though the contemnor did not want him to.’