Practitioners involved in a high-profile Court of Protection case have spoken out after it emerged that a 71-year-old woman jailed for contempt had been fighting to let her brother spend his remaining months in his country of birth.
The court last week lifted restrictions on identifying the individual at the centre of Teresa Kirk v Devon County Council, Manuel Martins, who died on 1 February. Kirk was jailed in September last year after failing to comply with an order to sign a declaration of authority in relation to Martins, who lacked capacity.
Hal Branch, partner at London firm LSGA Solicitors, which represented Kirk when she was appealing her imprisonment, said: ‘The Court of Protection acknowledged that Mrs Kirk had a sincere and genuine belief that her brother was better off in a care home in Portugal and not one in England. However this was effectively ignored throughout with the court making penal orders against Mrs Kirk at the request of Devon County Council and the Official Solicitor.
‘No one seemed to consider what Mrs Kirk’s brother wanted and it is inconceivable that he would have wished his sister to be imprisoned for six months for doing what she thought was best for him.’
Last month the Court of Appeal approved a consent order setting aside the provision in the Court of Protection order requiring Kirk to provide the signed written declaration of authority.
Branch said the case raised important issues about the role of the official solicitor. ‘While it is arguable whether they should have been appointed at all, having been so, they simply followed Devon County Council without giving real consideration of what Mr Martins really wanted,’ he said.
‘As the Court of Appeal pointed out when releasing Mrs Kirk from prison, in the past the [official solicitor] would have immediately applied to the court to obtain the release of Mrs Kirk when she was initially imprisoned, as it was clearly in the interests of Mr Martins that they do so. Sadly, in this case the [official solicitor] supported the imprisonment of Mrs Kirk.’
A Court of Appeal judgment published last month reveals that Martins was ‘exposed to a significant charge upon his diminishing estate to meet the costs of his representation in these proceedings’.
Barrister Colin Challenger, who helped Kirk mount a challenge against her imprisonment, said: ‘The Court of Protection should make a decision by itself. If the court wants to appoint someone… it should be back to the days of legal aid and the appointed person should be paid by other taxes.’
Devon County Council, in a statement, said: 'This is a complex case in which our paramount concern has always been the welfare of Mr Martins; a vulnerable adult who lacked mental capacity and to whom we owed a clear safeguarding duty.
'We have only ever sought to act in Mr Martins' best interests with a view to facilitating a safe return to his home. The Official Solicitor, acting on behalf of Mr Martins, supported our application and the Court of Protection accepted our argument that it would be in the best interests of Mr Martins to return to live in his hometown in Devon.
'Unfortunately, the English courts were ultimately not able to facilitate such a return after Mr Martins was removed, during proceedings, to a foreign jurisdiction that had not ratified the Hague Convention on the protection of vulnerable adults.
'Devon County Council is disappointed that it was not ultimately possible for the court to impose its own judgment and ensure Mr Martins' safe return to the community in which he had chosen to live for over 50 years. We consider we could have done nothing more to try and achieve this result on his behalf.'
A spokesperson for the Official Solicitor said it did not comment on individual cases or rulings.