27 March 2020 - Article
The Court of Protection has held that a declaration of best interests in relation to an incapable person under Mental Capacity Act 2005 (MCA) does not have the legal status of a court order and that therefore a person acting in defiance of the declaration could not be in contempt of court. This was of key relevance in the case of MASM v MMAM and others  EWCOP 3. In 2014 Hayden J declared that it was in the best interests of a UK resident elderly lady – originally from Saudi Arabia – to stay in a residential home in England. The court said that in defiance of that declaration, her son arranged for her to return to Saudi Arabia. The question before the Court was what action could be taken against the son; was the declaration to be treated as a court order in which case its breach could lead to penal sanctions? Hayden J concluded that the declaration of best interests was not an order. Although it was a formal, explicit statement or announcement it did not have the mandatory imperative of an order and anyone acting in defiance of it could not be held to be in contempt of court.
Hayden J make a number of suggestions as to how the Court might deal with this kind of situation in the future. These included the Court making an order under Section 16 MCA which could, where appropriate, be drafted in more prescriptive language. In relation to residence cases like this one, the Court should always consider whether to reinforce any order under Section 16 with a declaration under Section 15 which would clarify that it would be unlawful to remove the vulnerable person or to permit or facilitate their removal other than by an order of the court. Additionally, recognising that there might be cases where there was significant potential for a party to disobey the order or otherwise frustrate the plans for the vulnerable person which the Court had approved in their best interests, the Official Solicitor or Local Authority should consider inviting the Court to seek undertakings from the relevant parties that they would not do so. If such undertakings were refused then other orders might be appropriate. Finally, where a potential breach was felt to be a risk, the Local Authority and/or the Official Solicitor should regard it as their professional duty to bring the matter to the immediate attention of the Court.
Finally, Hayden J held that the son should be responsible for the costs of proceedings at every stage and for every party, such costs to be borne by the son personally and not taken from his mother's funds. The Court also invited the Local Authority to take immediate steps to secure the son's removal as his mother's deputy and it was hoped that the Court would hear soon that this had been done.