Teresa Kirk appeal: order set aside as futile in the face of Ms Kirk’s refusal to comply

Wednesday 8 February 2017

Teresa Kirk v Devon County Council [2017] EWCA Civ 34, Sir James Munby P, 30 January 2017 The court approved a consent order compromising the appeal of Teresa Kirk against the order requiring her to secure the return of MM from Portugal. For the facts of the case, please see the case note posted on 7 February 2017 on the appeal against the committal order made against Ms Kirk.

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Teresa Kirk v Devon County Council [2017] EWCA Civ 34, Sir James Munby P, 30 January 2017

The court approved a consent order compromising the appeal of Teresa Kirk against the order requiring her to secure the return of MM from Portugal. For the facts of the case, please see the case note posted on 7 February 2017 on the appeal against the committal order made against Ms Kirk.

The local authority and the Official Solicitor on behalf of MM agreed that the order requiring Ms Kirk to sign papers to cause MM to be returned from Portugal was otiose and should be set aside because it was plain that Ms Kirk would not comply with it.

The manager of the Portuguese care home had informed the parties that Ms Kirk was viewed in Portuguese law as the decision-maker for MM. An analysis of Portuguese law commissioned by Devon County Council confirmed that the suspension of the lasting power of attorney in favour of Ms Kirk in this jurisdiction was of no relevance in Portugal. Portugal is not a signatory to the 2000 Hague Convention on the International Protection of Adults.

Sir James Munby held that the court would not make any further orders against Ms Kirk that were futile. However it should not be too readily assumed that the Court of Protection would be as powerless in other cases and it should be borne in mind that in other cases foreign courts had acted speedily and decisively in returning an incapacitated adult, for example Re HM (Vulnerable Adult: Abduction)[2010] EWHC 870 (Fam); [2010] 2 FLR 1057, paras 27-29.

The judgment: https://www.judiciary.gov.uk/judgments/re-mm-a-patient-teresa-kirk-v-devon-county-council/

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