Devon County Council v Kirk [2016] EWCA Civ 1221 (05 December 2016)

Devon County Council v Kirk [2016] EWCA Civ 1221 (05 December 2016)

The committal order was set aside because it was premature to proceed with committal while Mrs Kirk had a pending application for permission to appeal the underlying welfare order, and a stay would almost certainly have been granted had it been sought. The absence of a stay application did not justify proceeding with committal in these circumstances.

Citation
[2016] EWCA Civ 1221
Parties
First Respondent Local Authority: Devon County Council; Appellant: Teresa Kirk; Second Respondent: MM (by his litigation friend, the Official Solicitor)
Jurisdiction
England and Wales
Judgment Date
05 December 2016
Procedural Posture
Appeal (civil) Contempt of Court / Court of Protection / Appeal Against Committal Order; Application for Permission to Appeal Welfare Order
Outcome
Appeal allowed; committal order set aside; Mrs Kirk released from prison; permission to appeal granted in part against mandatory orders but refused against substantive welfare decision.
Legal Topics
Court of Protection, Mental Capacity Act 2005, Committal for Contempt, Welfare Decisions, Appeals Procedure
Family Law Mental Capacity Law Contempt of Court Court of Protection Mental Capacity Act 2005 Committal for Contempt Welfare Decisions Appeals Procedure

Case Brief

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Parties

Devon County Council

First Respondent Local Authority

Teresa Kirk

Appellant

MM (by his litigation friend, the Official Solicitor)

Second Respondent

Procedural Posture

Appeal (civil) Contempt of Court / Court of Protection / Appeal Against Committal Order; Application for Permission to Appeal Welfare Order

Legal Issues

  1. 1 Whether committal for contempt was appropriate where an application for permission to appeal the underlying order was pending
  2. 2 Whether the Court of Protection was justified in making a mandatory order against Mrs Kirk backed by penal notice
  3. 3 Whether alternative means existed to achieve MM's repatriation without Mrs Kirk's compliance

Ratio Decidendi

The committal order was set aside because it was premature to proceed with committal while Mrs Kirk had a pending application for permission to appeal the underlying welfare order, and a stay would almost certainly have been granted had it been sought. The absence of a stay application did not justify proceeding with committal in these circumstances.

Court Disposition

Appeal allowed; committal order set aside; Mrs Kirk released from prison; permission to appeal granted in part against mandatory orders but refused against substantive welfare decision.

Orders

  • Committal order set aside; Mrs Kirk to be released immediately.
  • Permission to appeal against the mandatory orders made in June 2016 granted on specified grounds.