The Consequences of acting in Breach of a Declaration by the Court of Protection – MASM v MMAM [2015] EWCOP 3

This case has importantly considered the issue of whether the breach of declaration made in the ‘best interests’ of P (under the MCA 2005) can have the consequence of triggering contempt proceedings punishable by committal or some other penal sanction.  There was careful and detailed analysis of the difference between declarations and prescriptive orders, concluding that ‘a declaration is ultimately no more than a formal, explicit statement or announcement’ and as such there could be no contempt of Court or subsequent committal proceedings for a breach thereof.

This case involved Mrs MMAM an elderly lady who was living in squalid conditions and was ‘severely self-neglecting’ and suffering with mal-nutrition for a number of years whilst living in her own home.  Proceedings were issued in the Court of Protection and it was declared to be in Mrs MMAM‘s best interests that she should reside at a residential care home.  The order in which the declaration was made had been agreed by consent between the various parties to the proceedings.

Mrs MMAM was originally from Saudi Arabia although she had been living in the United Kingdom since the 1960s.  The best interests declaration as to Mrs MMAM’s residence was made in February 2014 but by April 2014, Mrs MMAM had been repatriated to Saudi Arabia with the assistance of Mrs MMAM’s grandson.

The Judge was highly critical of the explanation given to the Court of Mrs MMAM’s repatriation and found the evidence presented to the Court that Mrs MMAM repatriated of her own accord ‘entirely unconvincing’.  Indeed, it was stated that “this old, sick, largely incapacitous lady…would simply not have been able to function effectively or autonomously in the way that the grandson asserts…Mr MASM and his son have plainly colluded to defeat the declaration made by the court.  Mr MASM has done so notwithstanding that he acquiesced to the declaration made and drafted in the terms that it was…he has acted with cynical disregard to the objective of this process…and his actions are entirely inconsistent with the best interest of this vulnerable and incapacitous woman”.

The COP has the authority to make declarations as well as specific orders and injunctions under sections 15 and 16 of the MCA 2005.  The analysis in this case focuses on whether a party who deliberately acts in defiance of a declaration can be held to be in contempt of Court.  Significant emphasis was placed on the drafting of orders with declarations being described as offering “guidance” albeit often in the strongest of terms.  However, it is really the prescriptive nature of an order or injunction which will enable the Court to enforce the subsequent breach of such an order.

General guidance from the Judge in this case seems to point to declarations being used in circumstances where the cooperation or consent of parties can largely be relied on.  A prescriptive order will be more appropriate where formal enforcement following a potential breach might be required.  The issue of when and whether the Court of Protection should use declarations is currently before the Court of Appeal and we hope that this will provide further guidance on the construction of orders made by the COP and the appropriateness of the use of declarations.

It should be noted that a Penal Notice can be attached to orders unders.16 MCA 2005 – although the Judge cautioned against overburdening future cases with such prescriptive terms stating that it would be “disproportionate and indeed corrosive of the cooperation ultimately required, for the shadow of potential contempt proceedings to fall too darkly over cases such as this”.

The Judge was highly critical of the actions of Mr MASM and he commented that there was strong evidence to show that Mr MASM’s conduct was intended to frustrate or impede the intention of the Court.  However, Mr MASM was not “acting in defiance of an order and therefore is not exposed to contempt proceedings”.  His defiance of the declaratory order could not have the same consequences as the defiance of an injection or prescriptive order.

Additional criticism was levied on Mr MASM for initially acquiescing with the declaration of the Court and later disregarding the very declaration he had consented to.  Mr MASM was penalised for his actions and ordered to pay the entire cost of the proceedings “at every stage and for every party”.  This would no doubt have been a significant financial penalty for a litigation of (suspected) magnitude and indeed rather unusual for COP proceedings where legal costs are often ordered to be paid from P’s Estate.  In addition, the Local Authority was invited to secure Mr MASM’s removal as his mother’s Deputy thereby curtailing his involvement in her welfare and financial matters.

Whilst the COP does have authority to make prescriptive orders containing Penal Notices/sanctions the Judge was careful to highlight the need for resolving matters by cooperation in COP proceedings.  Where sensitive and complex family matters arise they should preferably dealt with by consent and combined efforts.  Whilst the defiance of a declaration is not sufficient to create a legal power from which to commence contempt proceedings; defiance can still have significant consequences.  A party purposefully disobeying a declaration is at risk of an adverse costs order and the possibility of removal from a fiduciary position, in this case Mr MASM’s appointment as his mother’s Deputy.

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