COP jurisdiction and powers – contempt of court
To the best of our knowledge, this case is the first judgment in the public domain recording the sentencing of someone to prison for breaches of orders made by the Court of Protection (PM v KH and HM  EWHC 2739 concerning breaches of orders made under the inherent jurisdiction).
The facts of the underlying case are not relevant to the contempt proceedings; suffice it to say that they related to the residence of JM, an elderly man suffering from Alzheimers and a degree of vascular dementia. The conduct of one of JM’s children, WM, had given rise to substantial concern on the part of the Court during the course of the proceedings, albeit that HHJ Cardinal was at pains to point out (paragraph 2) that the way in which she had behaved in that litigation was in no way reflected in the judgment to which he came upon the committal application.
In 2011, injunctive relief had been granted by first a District Judge and then HHJ Cardinal:
- to the effect that the respondents should not encourage JM to leave or to ask to leave his placement, or discuss with him the possibility of moving back home, or remove him from the jurisdiction of the court. The reason why that order was made was because there was a history on one occasion of JM being removed from the care home where he was situated and, indeed, taken to Turkey for a short period;
- restraining WM from using or threatening violence against her father or any employee of the applicant or the AH home, or instructing, encouraging or in any way suggesting any other person should do so. She was further forbidden from intimidating, harassing or pestering her father or any employee of the applicant Local Authority or the AH home.
Notwithstanding these injunctions, which had been served upon WM (who had attended nearly every hearing), WM took the following steps which HHJ Cardinal found to constitute contempt of court:
- WM and IM (her brother) took JM to see a solicitor in Birmingham to discuss his placement. They did so by WM persuading or causing IM and his partner to collect JM for what was initially reportedly a contact visit and to bring him from the Local Authority home to Birmingham to see a solicitor;
- WM produced and distributed a leaflet prior to and during the final hearing giving details of the case, containing a photograph of her father and other information so as to identify him and that is in breach of rule 90/91 of the Court of Protection Rules;
- speaking to her father on numerous occasions about the proceedings, even though she has been told that in doing so she has caused him distress. She also gave her father a wooden cross at a visit, saying that he should keep it with him at all times to prevent the evil in the home hurting him;
- abusing and threatening Ms LW (the practice lead social worker of the older person’s mental health team for the local authority), contrary to the court’s orders (the abuse including abusive emails and voicemails);
- bringing her father to Court on the day of the judgment upon the welfare application, a journey of some 50-60 miles, in circumstances where it was necessary for the clerk to HHJ Cardinal and court security to be involved to remove JM from her and IM, and where it was found that JM was unwell upon his return to the care home "thanks in no small part to the stress involved in attending court unnecessarily" (paragraph 3).
HHJ Cardinal found, perhaps not surprisingly, there had been a considerable number of breaches, and that WM had no intention, "unless restrained by a severe measure by this court, of obeying the orders herself" (paragraph 12). He also found that she had been seeking to evade service of the application for committal for contempt and in the circumstances considered it appropriate to proceed to sentence her in her absence. In light of the paucity of consideration by the Court of contempt applications, the relevant paragraphs of his judgment merit setting out in full:
"15. … I look at the terms of punishment. Miss Khalique has properly reminded me that the court’s purpose is not to express outrage, but simply to express the court’s concern as to breach of its orders and not in fact to punish unnecessarily, it is not a criminal court. I bear in mind the guidance given by the leading case of Hale v Tanner [ 1 W.L.R. 2377], but in the circumstances it seems to me that there is no alternative other than to commit this lady to prison. I realise, of course, that in doing so I would be punishing JM to a degree because in some small way he still appreciates visits from his daughter, although she seems to ruin part or all of most of the visits and telephone calls, but the court cannot allow this situation to continue whereby she abuses LW, she abuses staff at AH Home and she defies the court order by bringing her father to court. She is causing him very considerable grief. In those circumstances it seems to be only right she should go to prison.
16. I have thought very carefully about the punishment. Last time I proposed imprisonment for five months. There have been other incidents, but I am satisfied that those incidents took place simply because she had not appreciated that I was going to send her to prison for breaches and she just continued her behaviour. I do not think it is a case for increasing the punishment so in the circumstances for each and every one of the breaches I will send her to prison for a further period of five months to be served concurrently. I am not sure I have said so clearly, but I make it clear that the telephone calls by WM have been not just to LW, but, of course, also to staff at AH Home and I want to make it clear that this order is made to protect them just as much as it is to protect staff of the Local Authority direct."
It is, unfortunately, not uncommon for those before the Court of Protection to show themselves (by word or deed) reluctant to heed the declarations or decisions of the Court; this judgment is helpful confirmation that the standard principles applicable to contempt in civil proceedings will apply if and when their reluctance reaches the level of contempt.