Lamb Chamber’s Colin Challenger has won a case at the Court of Appeal connected to a dispute about the care of an elderly man with dementia, between Teresa Kirk, and Devon County Council.
Mrs Kirk, who is a 71-year old grandmother of impeccable character, was granted lasting power of attorney over the affairs of "M" who is aged 81 and suffering senile dementia.
He was living alone at his home in Devon purportedly under the care of Devon County Council whose supervision, according to Mrs Kirk, had left him in conditions of squalor and danger. Consequently, she removed him to her own home in Brighton where she commenced proper care of him.
The family are of Portuguese extraction and when "M" was fit to do so she took him on holiday with her to Portugal. Devon CC objected to this and commenced proceedings in the Court of Protection for "M's" return to Devon.
The proceedings became protracted with "M", whose dementia had deteriorated, being checked into a Portuguese care home in August 2015 where he remains.
Devon CC obtained an order in the Court of Protection that Mrs Kirk must sign an official release for "M" from the Portuguese home so that he could be returned to a residential care home in Devon.
According to Mrs Kirk, such a return would leave him frightened and disorientated, in a place where he would know nobody. She therefore refused to sign the release, whereupon Devon County Council commenced proceedings for her committal and she was sentenced to six months’ imprisonment.
Lamb Chambers then came to the rescue. First, in an application in the Queen’s Bench Division of the High Court (Mr Justice Ousley), we forced Bronzefield prison to permit proper legal access to Mrs Kirk which the prison had failed to provide.
Next we made application to a Master of the Court of Appeal for immediate consideration of Mrs Kirk's position. As a result, Mr Justice MacFarlane last Thursday ordered that her applications for permission to appeal against both the original order (that she sign the release) and the order committing her to prison be heard on 8 November.
That is, within two working days.
At the appeal (Munby LJ, MacFarlane LJ and Mrs Justice Black), the court granted permission to appeal out of time the order that Mrs Kirk sign the release from the Portuguese care home.
It also granted permission to appeal out of time the order for committal, heard that appeal and quashed her sentence of imprisonment, ordering her immediate release. It adjourned the question of whether Devon County Council should pay the costs of the appeal.
All of our applications were opposed (by counsel instructed on behalf of Devon County Council and by leading counsel instructed by the official solicitor purportedly acting as "next friend" of M).
Colin Challenger / 9th Nov 2016
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