Grandmother wins appeal in care dispute with council over breaching court orders

A 71-year-old grandmother given a six-month jail term after social services bosses complained that she had breached orders made in the Court of Protection is to be freed after mounting an appeal.

Teresa Kirk had complained that a Court of Protection judge’s decision to jail her was disproportionate.

Three Court of Appeal judges on Tuesday agreed – after analysing the case at an appeal court hearing in London – and said she should be released.

Appeal judges said they would give reasons for their decision at a later date.

But the judge heading the appeal panel said the “system” had failed in Mrs Kirk’s case – and another appeal suggested that the process which led to her imprisonment had been “mechanical”.

Mr Justice Newton had handed down the prison sentence in August after concluding that Mrs Kirk was in contempt of court at a hearing in the Court of Protection – where judges analyse issues relating to people who might lack the mental capacity to make decisions for themselves – in London.

Lawyers representing Devon County Council had told Mr Justice Newton how social services bosses had responsibility for an elderly man with dementia.

They complained that Mrs Kirk had taken the man to a care home in his native Portugal and, in breach of court orders, had refused to return him to England.

Mr Justice Newton’s written ruling on the case did not spell out the relationship between Mrs Kirk and the elderly man.

He said the man had been born in Madeira and had a “large circle of friends”.

Sir James Munby – the judge who headed the appeal panel – said Mrs Kirk’s appeal against being committed to jail had succeeded.

“She is to be released forthwith,” said Sir James, who is President of the Court of Protection and the most senior Court of Protection judge in England and Wales.

“The system has failed in this case.”

He said detailed reasons for the decision would be published soon.

During the appeal hearing another judge, Lord Justice McFarlane, had said the process had been “mechanical” and added: “No-one at any stage of it has stood back and said ‘what are we doing here? Sending this 71-year-old lady to a six-month prison sentence in order to achieve a welfare benefit for (the elderly man)’?”

Appeal judges said the elderly man could not be named.

They heard that Mrs Kirk, who lives in Brighton, had encountered problems getting legal aid to mount an appeal.

A barrister, Colin Challenger, represented her for free.

The elderly man was represented by a barrister instructed by staff at the Official Solicitor’s office, which represents people who lack the mental capacity to make decisions.

Judges also heard from a barrister representing Devon County Council.

The Official Solicitor and the council raised arguments against Mrs Kirk’s appeal.

Barrister Fenella Morris QC, who represented the elderly man, told judges: “The possibility that Mrs Kirk wishes to be a martyr is perhaps one that is available.”

After the hearing, Mr Challenger said: “Sir James was right. The system failed in this case.”

He said he was disappointed that Devon council and the Official Solicitor’s office had not backed Mrs Kirk’s appeal.

“Mrs Kirk isn’t a martyr who wants to be in prison. She simply wants to do her best for someone she cares about.”

He added: “This is a superb decision by the appeal court.”

At an earlier court hearing, Mr Challenger had told how he had encountered difficulty getting access to Mrs Kirk at the prison where she was held.

He said he had initially been unable to see Mrs Kirk at Bronzefield prison in Ashford, Middlesex, or get paperwork to her.

Former Liberal Democrat MP John Hemming, who campaigns for improvements in the family justice system and had raised concerns about Mrs Kirk’s case, also welcomed the appeal court ruling.

“The system clearly failed in this case,” said Mr Hemming. “She should not have gone to prison in these circumstances.”

He added: “People would not believe what goes on in the Court of Protection – and in family courts. There needs to be more transparency and more scrutiny. Journalists should make sure they take every opportunity to attend hearings. There also needs to be more scrutiny of the work done by the Official Solicitor.”

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