https://www.bailii.org/ew/cases/EWCOP/2023/3.html
Facts
This case concerned an application by Sunderland City Council for an order committing the Defendant, Lioubov Macpherson, to prison, for contempt of court by breach of injunctive orders made by the Court of Protection in proceedings on 30 June 2022. The Defendant’s daughter, FP, is the protected party in the Court of Protection proceedings. She is a very vulnerable woman in her early 30s who was diagnosed with cerebral palsy as a child, suffered meningitis in adulthood, and who now suffers from paranoid schizophrenia.
The Defendant and FP’s relationship was described as “enmeshed” and characterised by “highly expressed emotion”. The contact that they had was regarded as leading to a decline in FP’s mental health such that FP required in-patient treatment under detention under the Mental Health Act 1983 (MHA). This was, in part, due to the Defendant’s unsafe management of FP’s medication, stemming from her beliefs that FP was not ill and did not have paranoid schizophrenia but that the treating clinicians were ‘conspiring’ and causing FP harm by administering drugs that FP did not need.
The Court of Protection found that her beliefs were without foundation, but the Defendant maintained these beliefs and showed no sign of moderating them. The significant problem was that the Defendant acted upon these distorted beliefs by conveying them to FP, which fed into FP’s own delusional beliefs that she was being persecuted, worsening her condition. Further, the Defendant had a history of berating those who cared for FP, making serial complaints against them which jeopardised the security of FP’s placement. Both concerns led to the Court of Protection issuing court orders, one of which suspended face-to-face contact between FP and the Defendant and confined to video contact, fortnightly.
The Defendant also acted on her beliefs by publicising them in videos on Facebook, YouTube, and Twitter. The court considered it necessary for FP’s protection to make ‘more specific and targeted orders’ to prohibit the Defendant from publishing and communicating confidential information about FP without FP’s consent (which she would not have the capacity to give). Not only did such publications invade FP’s privacy, but they risked causing a deterioration in FP’s mental health, was she to learn of these publications – a likely occurrence, given FP’s apparent access to the internet which led to her learning of these committal proceedings. In this way, the injunctive orders related to FP’s best interests in respect of her residence, care, and contact. The application to commit the Defendant to prison for contempt of court alleged numerous breaches of these injunctive court orders, which the Defendant admitted to without equivocation.
Decision
In determining the sentence, Poole J noted that COPR r21.i, in force since 1 January 2023, was binding on him for the purposes of sentencing. The judge also adopted the general principles set out by MacDonald J in Re Dahlia Griffith (application to Commit) [2020] EWCOP 46:
“43. In considering the appropriate penalty in this matter, I have had regard to the following principles applicable to that exercise:
i) The penalty chosen must be proportionate to the seriousness of the contempt.
ii) Imprisonment is not the starting point and is not the automatic response to a contempt of court.
iii) Equally, there is no principle that a sentence of imprisonment cannot be imposed on a contemnor who has not previously committed a contempt.
iv) In circumstances where the disposal chosen must be proportionate to the seriousness of the contempt, where an immediate term of imprisonment is appropriate it should be as short as possible having regard to the gravity of the contempt and must bear some reasonable relationship to the maximum sentence of two years imprisonment that is available to the court.
v) Where a term of imprisonment is the appropriate sentence, the length of the term should be determined without reference to whether the term is to be suspended or not.
vi) Having determined the length of the term of imprisonment, the court should expressly ask itself whether a sentence of imprisonment might be suspended.”
The judge noted that the Defendant’s actions amounting to contempt of court were deliberate, her overwhelming attitude being that the court’s orders were unjust and should not be complied with.
The Defendant had published material online without regard for the orders because she was on ‘a mission to expose the wrongdoing’ of those treating FP and the Court of Protection.
Further, the court noted that the Defendant failed to avail herself of the opportunity to remove the offending items from her social media platforms before the hearing.
Crucially, however, the judge noted that it was the conversations between the Defendant and FP that were harmful, not the posting of this information online. The Judge found no evidence that FP herself was aware of the fact that her conversations were being published. FP may not even have been aware that her telephone conversations were being recorded. Therefore, the judge proceeded on the basis that there was no evidence that the breaches brought actual harm to FP.
Nevertheless, the Defendant had shown no respect for the Court’s orders. In fact, she showed pride in committing her breaches and stood defiant of the court and firm in her resolve to bring attention to her views on her daughter’s treatment and care – views which were found to be ‘bizarre’ and have no foundation in fact.The defendant had no income of her own with which to pay a fine, the issuance of which, therefore, would set her up for failure. The imprisonment of the Defendant would likely have brought harm to FP should she learn of this, and perhaps more harm than the initial breaches themselves. Further harm would also have been brought to FP’s stepfather – aged 74 – for whom the Defendant was the primary carer.
The court was placed in an invidious position, therefore, with only a narrow range of available sanctions. The only appropriate sentence would have been imprisonment, given the seriousness of the Defendant’s contempt of court. However, the mitigating factors led to the judge’s conclusion that the appropriate sentence would be a suspended sentence of 28 days, concurrent for each admitted allegation of contempt.
Comment:
This case particularly illustrates the void between a court’s usefulness in theory and in terms of practical steps it can properly take. In this case, it was theoretically in the interests of FP to limit the harmful contact with her mother. However, in practice, this only strengthened the Defendant’s resolve to bring attention to the harm to which she believed the authorities were subjecting her daughter, despite the lack of funds she had to challenge the authorities in court. The conclusion reached by Poole J in this case struck a satisfactory balance between ensuring that the Defendant’s defections were punished whilst also ensuring that the best interests of FP remained at the forefront of the proceedings. Even following these proceedings, it seems that the Defendant’s resolve to fight for her daughter has not dampened and there is a strong possibility that the Defendant will continue to breach the court orders. In reality, the court and its orders can cause more harm than good in some cases, and the law may not be able to restrain some superior forces: in this case, a mother’s love for her daughter (or one might add, a person’s belief in their own righteousness, regardless of the evidence for or against it).