MM (A Patient)

Judgment Approved

Sir James Munby, President of the Family Division :

This is an appeal from an order made by Baker J in the Court of Protection on 20 June 2016. Permission to appeal was granted by the full court (Sir James Munby P, Black and McFarlane LJJ) on 8 November 2016, on which occasion we stayed Baker J’s order: Devon County Council v Kirk [2016] EWCA Civ 1221 , paras 32-38. That judgment sets out the background in some detail.

For present purposes the key facts can be quickly summarised. The Court of Protection has for some time been dealing, on the application of the relevant local authority, Devon County Council, with an elderly man, MM, who lacks capacity. MM was born in Madeira but had lived in this country for many years. He had been removed to Portugal, where he remains, by the appellant, Ms Kirk. A number of judges have found that his best interests will be served by his return to his familiar surroundings in this country. In a detailed judgment which he delivered on 10 June 2016, Baker J gave reasons for coming to that view and explained why he was making the order which is now under challenge: Re MM, Devon County Council v MM and TK [2016] EWCOP 45 . Paragraph 7 of the order provided as follows:

“No later than 4 p.m. on 27 th June 2016 Ms Theresa Kirk shall provide to Devon County Council a signed copy of the written declaration of authority appended to this order and having signed the said document shall not thereafter take any steps or measures to withdraw or countermand such authority whether by herself or by instructing or encouraging any other person to do so.”

Ms Kirk failed to comply with that order and refused to sign the required document. The local authority applied for her committal. On 18 August 2016, Newton J found her guilty of contempt and sentenced her to six months’ imprisonment: Re M [2016] EWCOP 42 . Her appeal against that order came before us on 8 November 2016, when we quashed the committal order and directed Ms Kirk’s immediate release from prison, essentially on the ground that Newton J should not have embarked upon the hearing of the committal application while her application for permission to appeal against Baker J’s order was pending: Devon County Council v Kirk [2016] EWCA Civ 1221 , paras 28-30.

In explaining why we were granting Ms Kirk permission to appeal against Baker J’s order, McFarlane LJ said this, Devon County Council v Kirk [2016] EWCA Civ 1221 , paras 33-36:

“33 Where Mrs Kirk may