MASM v MMAM [2015] EWCOP 3, [2015] MHLO 10
(1) The issue: "The point the case raises is a short but important one: namely the legal status of declaratory orders in the Court of Protection and the consequences, if any, for deliberate defiance of them. ... Mr MASM and his son have plainly colluded to defeat the declaration made by this court. ... Two questions have fallen for consideration here in the light of this background: (i) What is the legal status of a declaration of best interests in the Court of Protection? (ii) Can a party who deliberately acts in defiance of a declaration be held to be in contempt of court?" (2) Decision: "Ultimately, a declaration of best interests connotes the superlative or extreme quality of welfare options. It by no means follows automatically that an alternative course of action to that determined in the Declaration, is contrary to an individual's welfare. There may, in simple terms, be a 'second best' option. For this reason, such a declaration cannot be of the same complexion as a Court Order. It lacks both the necessary clarity and fails to carry any element of mandatory imperative. I am ultimately not prepared to go as far as Mr McKendrick urges me to and elevate the remit of the Court of Protection, in its welfare decision making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives is capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would it seems to me be entirely out of step with the development of our understanding of the importance of proper and fair process where the liberty of the individual is concerned. I would add that this has long been foreshadowed by the recognition that the necessary standard of proof in a application to commit is the criminal standard. Moreover, though my order of 20th February 2015 was expressed to have been made pursuant to section 16, it was drafted in declaratory terms. As such, for the reasons I have set out above, it cannot, in my judgement, trigger contempt proceedings. There cannot be 'defiance' of a 'declaration' nor can there be an 'enforcement' of one. A declaration is ultimately no more than a formal, explicit statement or announcement. That said I emphasise that Mr MASM, in fact acted, through the agency of his son, in a way which was cynically contrary to his mother's best interests. The course he took was not a 'second best' option but one entirely inimical to his mother's welfare, physically, mentally and emotionally. He has frustrated the objectives of the litigation but he is not, as I ultimately find, acting in defiance of an order and therefore is not exposed to contempt proceedings." (3) Guidance: "Such guidance as I can give can only be limited: (i) Many orders pursuant to Section 16 seem to me to be perfectly capable of being drafted in clear unequivocal and even, where appropriate, prescriptive language. This Section provides for the 'making of orders' as well as 'taking decisions' in relation to P's personal welfare, property or affairs. Where the issues are highly specific or indeed capable of being drafted succinctly as an order they should be so, rather than as more nebulous declarations. Where a determination of the court is capable of being expressed with clarity there are many and obvious reasons why it should be so; (ii) In cases which require that P, for whatever reason, reside at a particular place the parties and the court should always consider whether to reinforce that order, under Section 16, by a declaration, pursuant to Section 15, clarifying that it will be unlawful to remove P or to permit or facilitate removal other than by order of the court; (iii) In cases where the evidence suggests there may be potential for a party to disobey the order or frustrate the plans for P approved by the court as in his best interest, the Official Solicitor or Local Authority should consider inviting the court to seek undertakings from the relevant party. If there is a refusal to give undertakings then orders may be appropriate; (iv) Where a potential breach is identified the Local Authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention to the court. This obligation is a facet of the requirement to act sedulously in the protection of the vulnerable; (v) Thought must always be given to the objectives and proportionality of any committal proceedings see Re Whiting." (4) Costs: "Finally, in this case Mr MASM brought the proceedings, acquiesced to a declaration and then disregarded the outcome entirely. I can see no reason why he should not be responsible for the entire costs of the proceedings at every stage and for every party. I will afford his counsel every opportunity to make any representations on the point. I emphasise that such costs should be borne by Mr MASM personally and not taken from his mother's funds."
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
Court of Protection — Best interests — Declaration — Deliberate act in defiance of declaration made in best interests proceedings — Whether contempt of court — Whether parens patriae wardship principle applying
In re M (Incapacitated Adult) (Best Interests Declaration: Potential Contempt)
[2015] EWCOP 3B; [2015] WLR (D) 42
Ct of Protection : Hayden J : 29 January 2015
The fact that a party deliberately acted in defiance of a best interests declaration made by the Court of Protection could not, without more, trigger contempt proceedings since a declaration was ultimately no more than a formal, explicit statement or announcement and there could not be “defiance” or “enforcement” of such a declaration.
Hayden J, sitting in the Court of Protection, so stated when considering whether contempt proceedings were possible where a son, MASM, and his son, MM, had removed his mother, MMAM, an aged, sick and largely incapacitated lady, from the residential home in which she had been living and had arranged for her return to Saudi Arabia in the face of the court’s declaration made on 20 February 2014 that pursuant to section 48 of the Mental Capacity Act 2005 (“the MCA”) it was lawful and in MMAM’s best interest to continue to reside and receive care at X residential home. The Official Solicitor, acting on MMAM’s behalf, sought a referral to the Attorney General to consider whether contempt proceedings should be brought. The local authority, Hackney London Borough Council, and the NHS Trust, Homerton University Hospital NHS Foundation Trust, respondents in the original best interests determination also appeared.
HAYDEN J said that the questions for consideration were: (i) the legal status of a declaration of best interests in the Court of Protection; and (ii) whether a party who deliberately acted in defiance of a declaration could be held to be in contempt of court. His Lordship considered the case law and the submissions of the local authority, supported by MASM, inter alia that a refusal to comply with an order which was declaratory rather than coercive did not constitute a contempt of court and in any event the declaratory order had not contained a warning/penal notice, together with the submissions of the Official Solicitor that, although no order or injunction (as opposed to declaration) had been made in relation to MMAM’s residence at the residential home or to preventing a party or non-party from removing her from the home or the jurisdiction, the principles of wardship and parens patriae should apply given the supervisory and protective nature of the Court of Protection jurisdiction and the incapacitated person should be protected as would a ward of court. In his Lordship’s judgment the jurisdiction being exercised did not equate seamlessly with the exercise of the parens patriae or wardship jurisdiction in relation to children. Ultimately a declaration of best interests connoted the superlative or extreme quality of welfare options. It by no means followed automatically that an alternative course of action to that determined in the declaration was contrary to an individual’s welfare; there might, in simple terms, be a “second best” option. For that reason, such a declaration could not be of the same complexion as a court order; it lacked both the necessary clarity and failed to carry any element of mandatory imperative. His Lordship was not prepared to elevate the remit of the Court of Protection, in its welfare decision-making, to such a level that anything hampering the court in the exercise of its duty, or perpetrated in wanton defiance of its objectives was capable, without more, of being an interference with the administration of justice and therefore criminal contempt. Such an approach would be entirely out of step with the development of an understanding of the importance of proper and fair process where the liberty of the individual was concerned, foreshadowed by the recognition that the necessary standard of proof in a application to commit was the criminal standard. Moreover, although the order of 20 February 2014 was expressed to have been made pursuant to section 16 of the MCA, it had been drafted in declaratory terms. As such, it could not trigger contempt proceedings. There could not be “defiance” of a “declaration” nor could there be an “enforcement” of one. A declaration was ultimately no more than a formal, explicit statement or announcement.
Giving only limited guidance: (1) Many orders pursuant to section 16 of the MCA, which provided for the “making of orders” as well as “taking decisions” in relation to the incapacitated person’s personal welfare, property or affairs, were perfectly capable of being drafted in clear unequivocal and even where appropriate prescriptive language. Where the issues were highly specific or indeed capable of being drafted succinctly as an order they should be so drafted, rather than as more nebulous declarations. Where a determination of the court was capable of being expressed with clarity there were many and obvious reasons why it should be so. (2) In cases which required that the incapacitated person resided at a particular place the parties and the court should always consider whether to reinforce that order, under section 16, by a declaration, pursuant to section 15, clarifying that it would be unlawful to remove the incapacitated person or to permit or facilitate removal other than by order of the court. (3) In cases where the evidence suggested there might be potential for a party to disobey the order or frustrate the plans for the incapacitated person approved by the court as in his best interest, the Official Solicitor or local authority should consider inviting the court to seek undertakings from the relevant party. If there was a refusal to give undertakings then orders might be appropriate. (4) Where a potential breach was identified the local authority and/or the Official Solicitor should regard it as professional duty to bring the matter to the immediate attention of the court. That obligation was a facet of the requirement to act sedulously in the protection of the vulnerable. (5) Thought always had to be given to the objectives and proportionality of any committal proceedings.
Appearances: Nicholas Elcombe (instructed by Rudlings & Wakelam, Brandon) for the applicant; John McKendrick (instructed by Bindmans) for MMAM, by her litigation friend the Official Solicitor; Rhys Hadden (instructed by Legal Department, Hackney London Borough Council) for the local authority; Peter Mant (instructed by Bevan Brittan LLP) for the NHS Trust; MM did not appear and was not represented.
Reported by: Jeanette Burn, Barrister.
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