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Imprisoned By The Court Of Protection – A Power Too Far?

Caroline Philcox

Caroline Philcox

How have we got to a situation whereby a Court set up to help and safeguard vulnerable people starts to turn into a stage set from 1984? The intention at inception of the Court of Protection was to offer protection to adults judged not to have the mental capacity to make their own decisions. It wasn’t to grace the pages of both broadsheets and tabloids as a private civil court with the power and the will to imprison people for contempt without fair trial or indeed without even their attendance.

We didn’t know the ins and outs of why Social Services and the Courts took so against Wanda Maddocks, in part because of the secrecy in which the process is shrouded (the judgment has since been published here). What we do know is that a woman who irritated Social Services by scuppering their proposals for her father, to include removing him from a care home when she considered him in danger, ended up with a sentence for five months’ imprisonment for contempt or wilful defiance of the court. And this from a civil court.

No record of the ruling was published, and disclosure was forbidden as to the identity of Miss Maddocks, her father, the social worker who gave evidence against her or the council involved. The Court was open for sentencing but this was announced only to those who happened to be outside the doors of the Court at the time.

The case came to light after Miss Maddocks was released, having served six weeks of her sentence. Her transgressions and those of her brother (who was handed a two-month suspended sentence) included taking their father to a court hearing and to see a Birmingham lawyer. She also apparently embarked on events to the more bizarre end of human behaviour – giving her father a wooden cross to ward off evil at his care home and leaving what are described as offensive messages for social workers. The fulcrum hardly seems in place for a balanced outcome, however: the power of an individual playing at The Exorcist as against the power of Social Services to get someone imprisoned because they don’t agree on what is best for her father.

Such was the outcry that Lord Judge, the Lord Chief Justice, and Sir James Munby, president of the Family Division of the High Court in England and Wales, have reviewed committal for contempt of court. On 3 May 2013 they issued a new guidance on committal in the High Court to include the Court of Protection and the Family Division. They start with the fundamental principle that applications for committal for contempt should be heard and decided in open court and that the discretion which exists to hold such an application in private should only be exercised in exceptional cases where it is necessary in the interests of justice. The publication of any material that ought not be published can be covered by an appropriate order and all committal applications in these courts should at the outset be listed and heard in public.

Wherever a committal order is made, the judgment must be transcribed, published on the BAILII website and a copy made available for order for the cost of the copy. And all as soon as reasonably practicable.

The unusual nature of the sentence impinged on Miss Maddocks in another respect. Apparently the prison warder did not believe that she was in prison for contempt and a fellow inmate allegedly assaulted her as she thought she was lying about being there without having committed a serious crime or having had a public criminal trial.

Perhaps now the Court of Protection can continue doing what it tries so hard to do: to finely balance the needs of the vulnerable in our society with outcomes sought by the loved ones of those very people. The hearings will still be in secret, but at least committal can no longer take place without prior listing. Committal applications will be in open court and there is now a guarantee that judgment of that committal will be in the public domain shortly after the event.

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Caroline Philcox

caroline-philcox

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