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IN THE COURT OF PROTECTION Case No. 13258625
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
AND IN THE MATTER OF EO
BETWEEN:
SUNDERLAND COUNTY COUNCIL
Claimant
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MRS LIOUBOV MACPHERSON (R2)
Defendant
XXXXXXXXXXX (by her litigation friend, Niall Salmon) (R1)
MR ROD MACPHERSON (R3)
Respondents
_________________________________________________________
SKELETON ARGUMENT ON BEHALF OF THE DEFENDANT
For committal hearing before Poole J on 16 January 2023
_________________________________________________________
A: Introduction
This skeleton argument is written on behalf of Mrs Lioubov Macpherson (who goes by the name Luba), the defendant in the committal hearing before Mr Justice Poole sitting as a Tier 3 Judge of the Court of Protection in Newcastle at 2pm on Monday 16 January 2023.
Mrs Macpherson searched for a solicitor to take her case on a legal aid basis knowing that there is non-
Mrs Macpherson instructed counsel on a direct access basis on Wednesday 11 January 2023. At 5pm on Thursday the local authority circulated the committal bundle, allowing only one working day to prepare.
The skeleton argument uses the terms "claimant" and "defendant", pursuant to the terminology in Part 21 of the Court of Protection Rules 2017 ("COPR 2017") recently amended by
The skeleton argument is structured in the following way. Following the introduction, Part (B) deals with procedural matters including Mrs Macpherson's concerns about listing, her a response to the media application, her response to the local authority's application to dispense with personal service, and an application to vary the order of 12 January 2023.
Part (C) sets out the defendant's responses to each allegations, as set out in the order of 8 December 2022.
Part (D) sets out that Mrs Macpherson will very soon make an application for permission to appeal to the Court of Appeal in relation to three irregularities concerning paragraphs 1 and 2 of the order of 30 June 2022, matters that were not dealt with in Mrs Macpherson's appellant's notice. The court is asked to halt the committal proceedings until the Court of Appeal has determined the lawfulness of paragraphs 1 and 2 of the order of 30 June 2022.
In the event that the court proceeds with the committal hearing, Part (E) sets out in mitigation four reasons why the court should not sentence the defendant to a term of imprisonment. The reasons are that it would be contrary to XXXX's wishes and feelings and to her best interests; that prison is overly draconian given what Mrs Macpherson has done; that imprisonment is not a trauma-
(B) Procedural matters
This part covers the following topics:
(a) Listing
(b) Media application
(b) Personal service
(c) Application to vary the order of 12 January 2023
B(a): Listing
The Lord Chief Justice's 2015 "Practice Direction: Committal for Contempt of Court -
The listing for the hearing at 2pm on 16 January 2023 before Poole J.
The listing is inconsistent with paragraph 5 of the PD as it does not state that Mrs Lioubov Macpherson is the person alleged to be in contempt. The PD allows departure from the general rule in "exceptional circumstances" (para. 9) but the fact that the hearing is being held by the Court of Protection does not itself justify departing from the general rule. The listing states that, "Open justice is a fundamental principle in our courts" but the principle has not trickled down into the listing itself.
B(b) Media application
Paragraph 13(1) of the 2015 PD requires a the court following a committal hearing to sit in public and state (inter alia) the name of the contemnor. Paragraph 13(2) permits "no exceptions to that requirement. There are never any circumstances in which any one may be committed to custody or made subject to a suspended committal order without these matters being stated by the court sitting in public."
If the court sentences Mrs Macpherson to imprisonment (which this skeleton argument sets out the reasons why it would be wrong to do so), then the court must, pursuant to the 2015 PD, name Mrs Macpherson.
The 2023 amendments to Part 21 COPR 2017 set out at r.21.8(4) that a hearing may be held in private if (a) publicity would defeat the object of the hearing, or (d) a private hearing is necessary to protect the interests of P. The court is sitting in public, so this provision does not apply. The only part of the 2023 amendment that seems to bite in these circumstances is r.21.8(5) which sets out that the court may make a non-
If the court does not commit Mrs Macpherson to custody (and this skeleton arguments sets out the reasons why this would be an appropriate disposal), there is no requirement under the 2015 PD for the judgment to name her. As a consequence, members of the public would not be able to access Mrs Macpherson's social media accounts.
Mrs Macpherson has never published XXXX's full name. For the avoidance of doubt, Mrs Macpherson's position is that the media should not be permitted to report XXXX's full name.
B(c) Personal service
Paragraph 11.2 of CoP PD21A [E18] gives the court the power to waive any procedural defect in the commencement or conduct of a committal application if it is satisfied that no injustice has been caused to the defendant.
Sunderland County Council did not personally serve Poole J’s order of 30 June 2022 on Mrs Macpherson. This is a procedural defect. However, Mrs Macpherson accepts that she understood the terms of that order and that she has suffered no injustice as a result.
Of more concern as to Mrs Macpherson's Article 6 right to a fair trial are (a) that it was only at 5pm last Thursday 12 January 2023 that the Council filed and served the committal bundle, and (b) that on Friday 13 January 2023 the court directed that a fifth COP9 filed the previous day would be dealt with at the hearing on 16 January 2023: this is dealt with in the following paragraph.
B(d) Application to vary the order of 12 January 2023
This is an application pursuant to r.13.4(5) and (13) COPR 2017 to reconsider the order of 12 January 2023 at the hearing. The order was made without a hearing so the defendant is entitled to make an application to vary it. The order was sent to counsel representing Mrs Macpherson in the afternoon of Friday 13 January 2023. There is insufficient time to make this application on Form COP9 pursuant to r.13.4(3) COPR 2017. Permission is sought to dispense with the requirement to set out this application on Form COP9.
The order of 12 January 2023 is defective as it does not comply with r.13.4(13): "Any order made without a hearing or without notice to any person, other than one made under paragraph (5) or one granting or refusing permission to appeal, must contain a statement of the right to apply for a reconsideration of the decision in accordance with this rule".
The previous order of 8 December 2022 [D45-
On Thursday 12 January 2023 -
At 1:22pm on Friday 13 January 2023 (some eight working hours before the hearing), the applicant’s solicitor sent counsel for Mrs Macpherson the order that the court had made. The order says that COP9 and evidence in support shall be served by midnight on Friday 13 January 2023 and that these matters are to be dealt with at the hearing on Monday 16 January 2023 at 2pm in Newcastle.
The Council does not need permission to make "a contempt application" under r.21 COPR 2017. The Rules do not envisage a public body making a barrage of contempt applications in a short space of time, including until hours before a committal hearing. The court has a duty to make case management decisions to give effect to the defendant’s Article 6 rights, and a duty per r.1.1 COPR 2017 to give effect to the overriding objective of the COPR 2017 which includes ensuring that the matter is dealt with fairly, and ensuring that the parties are on an equal footing. The court is aware of Mrs Macpherson’s stance on the proceedings as a whole, It is aware that counsel was instructed on Thursday 11 January 2023, and that by the nature of these proceedings taking instructions has to be done with sensitivity and inevitably takes time.
To remedy the unfairness, the court is invited to vary the order so that the matters set out in the Claimant’s COP9 application dated 11 January 2023 shall be dealt with not at the hearing listed on 16 January 2023, but at a hearing to be listed in at least two weeks.
If the court refuses the defendant’s interlocutory application, she will seek permission to appeal to the Court of Appeal. The court should adjourn the substantive committal hearing until the Court of Appeal has determined the scope of the committal hearing.
(C) The defendant’s responses to the allegations
Paragraphs 1 and 2 of the order of 30 June 2022 relate to Mrs Macpherson. They state:
1. LM shall not:
a. record EO by video or audio for any purpose or in any way.
b. Record whether by video, audio or photographing staff from placement 3, or any other health or social care staff concerned with EO.
c. in any way publicise these proceedings or any evidence filed in the proceedings, including by way of posting on social media, YouTube, or any internet platform or website, including private or public sites.
d. cause to be publicised on any social media, video or streaming service including YouTube any video or audio recording of EO, recorded at any date.
2 LM shall forthwith remove from any social media video or streaming service including YouTube and from any website or other location on the internet, including private or public sites, any video or audio recording of EO, and/or staff supporting EO, which is present on any of those sites or services.
Allegation 1
"On 29 October 2022 publishing on YouTube and Twitter (and linking to LM’s Facebook page) a video entitled ‘The hospital number 2’ which video records LM having a telephone conversation with EO, whose words can be heard, and a video entitled ‘The 21 st Century Disgrace’ in breach of the injunction clauses 1d and 2."
Mrs Macpherson's response:
There is no evidence that any videos were posted on Twitter on 31 October 2022.
The video "The hospital number 2" is available at https://www.youtube.com/watch?v=hMQOpRnR_BU. The video was posted on 29 October 2022 and EO -
LM -
EO -
LM -
EO -
LM -
Mrs Macpherson did it out of desperation, with a hope to bring people together. She feels her daughter has been abused for five years. This is a mother protecting her daughter.
If the care home considered the conversation to be in any way inappropriate, they had the power under para. 9 of the order of 8 June 2022 to end the contact session.
The video entitled ‘The 21 st Century Disgrace’ is not available and there is no evidence about its contents.
Allegation 2
"On 31 October 2022 retweeting a link to a Facebook article which publicises and comments on these Court of Protection proceedings, attaching images of EO, in breach of injunction clause 1c."
The Defendant’s response: Paragraph 1(c) of the order should not have been made. The comment about the Court of Protection being corrupt is well within Mrs Macpherson's right to freedom of expression.
"The Court put injunctions on me and my husband, preventing us going public, threatening us with five years of prison sentence and the threats of even to confiscate our house. What my 73 years old husband did to get such threats? He worked for this country for more than 50 years and never had the chance to enjoy his retirement. Apart from spending his entire pot of private pension, we were dragged through almost four years of court that should not be there in the first place."
The Facebook post is accompanied by pictures of grotty-
Allegation 3
"On 2 November 2022 posting on Twitter with links to an article on LM’s Facebook page which explains the background to the proceedings and contains links to 5 videos of EO, and of LM in telephone conversation with EO, in breach of injunction clauses 1d and 2."
Allegation 4
"On 31 October 2022 posting on Twitter with a link to an article on her Facebook which publicises these proceedings and links to 3 videos of EO and LM in telephone conversation with EO, in breach of injunction clauses 1c, 1d and 2."
The Defendant’s response: This is the tweet at [G42]. It links to a Facebook post (available here) dated 3 June 2022 which predates the order of 30 June 2022. it says [G43]:
"When it becomes obvious that the legal system would stop at nothing to silence critics of the legal profession I felt I had to do my bit for freedom of speech. Unfortunately, I cannot say names and places for legal reasons, but I can show the truth, because the truth comes out, when you press record button…"
One of the videos shows XXXX's very long toenails and an injury to her ankle that Mrs Macpherson considers are signs of neglect.
Allegation 5
"On 24 October 2022 tweeting a link to an article on Facebook which publicises the proceedings and contains a link to a video of an interview with EO carried out on 22 September 2019, in breach of injunction clauses 1c, 1d and 2."
The Defendant’s response: The tweet is at [G46] and it links to a Facebook post dated 21 October 2022 saying "My daughter is being abused daily and I am struggling to put a stop to it. All of this is hiding behind the Court of Protection that does not protect, anybody but the Authorities." and pasting a copy of a letter she sent on 21 July 2021 to Sir Andrew MacFarlane, President of the Family Division. The post also contained a video from September 2019.
Allegation 6
"On various dates including 3 November 2022 posting on Twitter about the Court of Protection proceedings in breach of injunction clause 1c."
The defendant's response: Accusing Mrs Macpherson of breaching an order "On various dates" is too imprecise. She has to understand the precise charges against her to be able to respond. With regard to the tweet on 3 November 2022, it said:
"Does Access to Justice include getting justice at last from the highly corrupt Courts of Protection? Why will nobody even communicate, or study the complaints against the CoP? Does anybody at the Ministry ever ask what justice is, what is being served, and to whom?" [G26]
This does not breach the order. In any event, Mrs Macpherson's comments about the Court of Protection are well within her right to freedom of expression, and paragraph 1(c) of the order of 20 June 2022 should never have been made.
Allegation 7
"On 23 November 2022 tweeting a link to a Facebook article giving details of the case no. of the Court of Protection proceedings, and of the times and venue of hearings, in breach of injunction clause 1c."
The Defendant’s response: The Facebook post said this [G65]:
Below is a copy of my email that I sent this morning to about twenty legal firms in my efforts to find a Criminal Solicitor. Let's see what happens?
"Case ID: 13258625, Crime reference: 57058X/20
Dear Sirs,
I am looking for a criminal defence Solicitor. Can anybody help please?
I have two Court hearings. One is listed for an all day hearing that will be held on 6 of December. This hearing is in regards to the Court of Protection matter with which I have a lot of issues. There is a lot of proven criminal activity that has been going on for the last five years that was hidden behind the closed doors of the Court of Protection. I need a Criminal Solicitor who can take this case on for a thorough investigation into failures to intervene or investigate, by the Police, and every other regulating body that has been involved.
I also expect that the Court of Protection will be investigated into its non compliance with its own rules and regulations, and why it allows perjury from social workers and Local Authorities.
Another hearing is listed for two hours starting at 10.30am that will be held on 8 of December for contempt to Court. I need a criminal defence Solicitor for this hearing too.
Both hearings will be held at the Family Court and Tribunal Centre in Newcastle, Barras Bridge, NE1 8QF.
I alasts 2 minutes 26 seconds. A transcript is as follows:
LM -
EO -
LM -
EO -
LM -
EO -
LM -
EO -
LM -
EO -
LM -
I will not overload you with the information at this stage, but will attach a copy of an Open Letter that I sent just recently to all of the Ministers, including the Minister of Justice, the Health and Care Minister, the Home Secretary, Chancellor Jeremy Hunt and to the Ombudsman. You will see that I asked for the public enquiry. I feel that it is the Public's entitlement to understand why the legal system generates and allows it's own criminality.
I also will attach a copy of another letter that was sent two weeks ago to the Home Secretary.
I am looking forward to hearing from you.
Thank you.
Yours sincerely,
Luba Macpherson."
It is an afront to justice to suggest that this is a contempt of court. This was Mrs Macpherson's letter to law firms seeking help. She posted it on social media to see whether anyone could help her. Paragraph 1(c) of the 30 June 2022 order should never have been made.
Allegation 8
"On 21 November 2022 tweeting a link to an article posted on Facebook on 29 November 2022 which publicises these proceedings, in breach of injunction clause 1c."
The Defendant’s response: This Facebook post is at [G69]. One of the paragraphs says:
"Now I am being served with papers for Contempt of Court for daring to speak out on Social Media, despite the fact that the Court Orders are not legally binding and the Court itself unlawful, because it is not in accordance with Article 6 of the Human Rights Act. The trial has been anything, but fair and is now subject to ECHR investigation."
Again, it is absurd to suggest that a person commenting on their upcoming contempt proceedings constitutes contempt. Paragraph 1(c) of the 30 June 2022 order should never have been made.
Allegation 9
"On 29 November 2022 tweeting a link to a further article which publicises these proceedings, in breach of injunction clause 1c."
The Defendant’s response: The tweet is at [G72]. It says "Here we go. The latest complaint for you to look at, but when will you actually look? There is an emergency application to the Court of Protection in regards to serious medical mistreatment has been ignored by the very Court that supposed to protect."
Again, it would be a ludicrous for this to be a contempt of court. Paragraph 1(c) of the 30 June 2022 order should never have been made.
Allegation 10
"On 6 December 2022 tweeting a link to a Facebook article she had just posted referring to the Court of Protection hearing which had taken place that day, in breach of injunction clause 1c."
The Defendant’s response: Mrs Macpherson posted to Facebook after coming home from the court hearing on 6 December 2022. The full post says this:
This is my submission to the HH Judge Poole.
It is beyond my comprehension, that the LA not only spend more time concentrating on LM and videos, that in XXXX herself, but are making that attack in order to hide more evidence against themselves. First the deliberate withholding of evidence from May until July 2020, and now a video showing a badly damaged ankle whilst in their care.
Your Honour, it cannot be allowed to just go on. It is positive evidence of wrongdoing, and must be recognised.
The proposed restrictions are inhuman in their severity. They protect XXXX from nothing. They only take away the constant concerns about poor care that the social worker complains of, but does nothing about.
The social worker is acting out of spite in recommending these restrictions, and punishing us because she was reported to her Regulator. The Regulator found her to be wrong, but not for long enough to be reprimanded. She has been rewarded with a promotion for her efforts, just as her immediate predecessor was, and the perjurious carer XXXX XXXXX gained a new job from it. Similarly anybody, carer or professional who raised concerns was moved aside, exactly as Mum and I have been moved aside in the hope of removing us altogether. The entire SCC Social Services department fail in their duty to help and protect a vulnerable person or a family with a problem. That is their Duty of Care, that with Ella and LM has been neglected throughout. Yet the root problem, of the terrible care and conditions in a LA Regulated Care Home has been completely ignored.
I have long maintained that Ella’s condition is engineered to suit an Agenda. Ella can be well for a long time, but suddenly and without reason become unwell for the Court expert, Judge Moir, other professionals, and today Your Honour. It is far too much coincidence to be natural. Add together the strong objections to any sort of toxicology testing by the LA and her own representatives, it begs a lot of questions. The LA and JoB must explain why they object to every test or investigation, criminal or otherwise from taking place. Their constant refusal to assist or question arouses suspicions that are reinforced with every unanswered question, and extended restriction. Sooner or later, the scheme will break down. Please Your Honour, I beg you to break the circle now. Ella’s prescription must be corrected to what is known to work, and independent irregular and unannounced testing must be used to prove that nothing underhand is taking place. She has been made to suffer too much, and we have all been punished for refusing such poor Care as the photographs and videos show.
The restrictions, together and separately are not working, and are neither fair nor least restrictive. They are not in Ella’s best interests simply because for the last four years she has constantly said, when asked, that she wants to see more of Mum. She has nobody else. She relies on Mum for everything, from love and advice to every sort of help imaginable. That is how it has been for 36 years. It cannot be allowed to make the unconscionable decision to part them for such long periods. Even the restrictions on conversations are far too much an invasion of Ella’s privacy, and wellbeing. The short phone calls because her native language is used is discriminatory to the extreme. The complete ban on conversations about health, or appointments, or solicitors or Court are of such importance to Ella, that she has nobody to trust except Mum. Everybody has let her down, by making promises that have not been kept. Her Advocate, her Solicitor, successive Social Workers, and even her Consultant have all let her down. Only Mum is her constant point of reference and compass to show her the way to progress. If that is denied, it is only through vindictiveness rather than of any benefit to her.
It is an illegal statement to make, that Ella has no capacity. She has not been assessed for half a year. I remind again the Mental Capacity Act 2005 states "Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability." That cannot be taken away. One Act cannot replace another. When will that be understood? Reliance on an expert with no corroboration is not good enough. There have been far more expert and practicing professional that have stated the opposite, since he and others have made their own opinions. The short paragraph from the MCA proves that point. Ella must be given the right to make her own decisions, wise or not without interference, exactly as stated in the Act. The Court is a servant to that Act. The Court must work within the Act, and instruct others such as the LA, that they are acting illegally.
The Court knows that the Attorney General has been approached officially. Other Courts have also been approached officially and fees paid. This is a family protecting the child. The Barristers who complain about taking complaints everywhere must have no family, or feelings. We cannot be condemned for demanding a proper level of Care conditions and medication. That is the right of every human being on this planet. WHO laid that out in 1948. ECHR has followed it further. Other organisations take the same rights to every corner. The proposed restrictions cannot be allowed to impinge on those organisations. The existing restrictions must be reduced.
Ella has been empowered by the MCA 2005. That empowerment has been taken away by SCC. Since when has a Local Authority and it’s Social Workers been more powerful than the Law of the land? Since when have Courts of Law been used by LAs to satisfy their own ends? The various investigations, Parliamentary Committees, and protests must be recognised that something is very wrong.
SCC must also be instructed to address the long outstanding issues at last, before they are instructed to do so by the other Courts.
I remind everybody, that Tees Esk and Wear Valleys Trust are about to be prosecuted for causing the deaths of three young girls in their Care and mistreated. These things cannot be ignored. There have been enough local concerns already, but still the LA use them rather than take responsibility that is rightfully theirs.
Your Honour,
I must also comment on the dangerous, misguided and vindictive comments about my mental health. Not only is it very wrong, but it is also discriminatory in its ignorance of the Slavic people and their normal emotional behaviour. "High expressed emotion" is a natural part of Slavic make up and is being mistaken for concerns, the need for answers, frustration at the immovability of mindless persons has nothing to do with anger or bad behaviour. After five years of ignorance, secrecy, deliberate secretion of evidence, and a complete lack of care or concern, whilst only being subject to slanderous and libellous blackening of character, together with a daughter being harmed and a carefree attitude from professionals, what does the Social Worker expect? It is the same complaint raised more than 4 years ago without any foundation, just as it has been foisted onto Ella. Mental Health, the biggest sickness con job since a bad back! The Social Workers fixation with ideas of Abduction, or other sort of forced removal of Ella, reinforce concerns for her own mental health. She cannot see past some sort of conspiracy. She has been ignoring a genuine abduction attempt and conspiracy relating to health for too many years. She is offensive in the extreme. Likewise, before she makes comments about Ella being happy before contact and down afterwards, this is yet another identical comment from Gladys Reed that was ridiculed then and is now. It is perfectly natural for anybody to be happy looking forward to something, and sad when it is over. The Social Worker really must address her own problems. She is incapable of understanding others. Twice in Statements, she has shown her ignorance of the MCA 2005, by rewriting it to suit herself. What is her problem that makes her unfit for her position?
A
Again, none of this breaches the transparency order that bind members of the public. If an observer had written a similar article and Prof Kitzinger had posted it on the Open Justice blog, there would be no contempt.
Allegation 11
"On 2 December 2022 posting on YouTube a video entitled ‘Movie on 17.06.2022 at 13.57’ which records LM speaking to EO, and staff speaking to LM, in breach of injunction clause 1d."
The Defendant’s response: The video entitled "Movie on 17 06 2022 at 13 57" is available here: https://www.youtube.com/watch?v=b4yMDhlyXi0. It is 2 minutes and 47 seconds. A transcript is as follows:
LM – I missed your phone call… my darling
EO – I want [Inaudible]
LM – same old story
EO – Yeah
LM – You still suffering for long periods of time and they ignoring you. Is it the same old story?
EO – Yeay. Yeah.
LM – just unbelievable honestly. I cannot understand how this can continue, can go on really.
EO – Yesterday
LM – Yeah I am listening
EO – Yesterday my solicitor came, Nichola.
Staff interrupt.
LM – What is she saying? Elen can speak about anything she wants. Why she interrupting? Why is she interrupting you?
Staff member – You are not supposed to be discussing her solicitor with her Luba.
LM – I am not discussing… Ella’s saying to me and you discriminating against here by interrupting and by dictating the court order does not exist. Ella speak what you want to say.
EO – I said to her that I want to… um… in the future move out of here and move somewhere near to you.
LM – Home. I want you home my love because –
EO – So do I.
LM – So do I. Thank you Ella, because it is second home where they are not looking after you and all this medication business, it will be addressed sooner or later.
Staff member – Luba, Luba you’ve had your warning, you cant discuss medication or the solicitor.
LM – Its just unbelievable honestly
[inaudible]
LM – Are you not concerned? Are you not concerned about medications. Do you understand that my daughter even understands what is going on at your place and you ignoring it saying that I cannot discuss your criminal activity –
Staff member – Luba if you –
LM – I can discuss and I will discuss and I will expose you for everything what you are doing to my daughter.
Staff member – Luba I have to end the call.
LM – I love you Elen.
EO – I love you too
Staff member – Say goodbye.
EO – Bye mum.
LM – I love you my [inaudible]. Did you say to her that you want official solicitor that she does absolutely nothing for you?
EO – Er no I forgot that, I will tell her next time.
LM – Yes you should Ella you should. Thank you. Thank you my [inaudible]
EO – I love you.
LM – I love you. I love you
Mrs Macpherson did it out of desperation because she felt like nobody was listening to her concerns and that the situation was not improving. In the video description Mrs Macpherson asks for help understanding the situation.
(D) Appeal to the Court of Appeal
Mrs Macpherson considers that paragraphs 1 and 2 of the order of 30 June 2022 were defective and will shortly make an application to vary the time limit for filing an appeal notice to the Court of Appeal. There are three deficiencies: (a) The injunctions were ultra vires as they do not attach to a best interests decision and do not flow from any finding that Elen lacked capacity to make a decision to consent to her image and voice being recorded and published; (b) The orders set Mrs Macpherson up to fail and there were alternatives to achieve the court's goal; and (c) The injunction preventing Mrs Macpherson from publicising the proceedings was contrary to principles of open justice.
D(a): The court's injunctive orders were ultra vires
Contempt of court involves a contumelious deliberate disobedience to the court: Re: A (A Child) [2008] EWCA Civ 1138, para. 6. It follows that the order the alleged contemnor is said to have breached must have been an order that the court had lawful authority to make.
In Mrs Macpherson’s case, the injunctive directions in paragraphs 1 and 2 of the order of 30 June 2022 are not parasitic to a best interests decision concerning Elen: they were not made in order to enforce a best interests decision. As such, the court had no authority to make them.
The reason there is no best interests decision is that there is no s.15 MCA declaration that Elen lacks capacity to consent to her mother posting videos online.
In E (by her litigation friend, the Official Solicitor) v Channel Four; News International Lrd and St Helen's Borough Council [2005] 2 FLR 913 [2005] EWHC 1144 (Fam), Munby J (as he then was) held that one cannot assume a person lacks capacity to decide on publicity or that it would necessary be negative just because they have a mental disorder and the publication shows they have a mental disorder. There is no evidence that it is more likely than not that Elen lacks capacity to make a decision to consent to the publication of videos of herself.
In the judgement of 30 June 2022, the court stated that, "One of the videos RT has posted of FP on YouTube has had 3000 views. It is demeaning to FP and a breach of her right to privacy to film her and then post recordings for others to see." There is simply no evidence that the judge is correct in asserting that it is demeaning to Elen and that she considers it to be a breach of her privacy.
For the purposes of the Data Protection Act 2018, Mrs Macpherson is a data holder of Elen's data. The Official Solicitor may, on her behalf (if she lacks capacity for which there is currently no evidence) make an application to Mrs Macpherson as data holder to remove photos and videos of Elen. If she does not do so, the Data Protection Act sets out enforcement mechanisms. The Court of Protection has no jurisdiction to resolve applications under the Data Protection Act.
Facebook has a mechanism whereby Person A can request Facebook to remove a photo of that person from Person B's Facebook page. 1 See "I want to report a photo or video on Facebook that violates my privacy" at https://www.facebook.com/help/327689333983073. On another page, Facebook has further advice on "How do I report a photo or video on Facebook that violates the privacy of someone who's sick, hospitalised or otherwise incapacitated?" 0 2 lthttps://www.facebook.com/help/379528005435965. If on cogent evidence set out in a capacity assessment the court were to make a s.15 MCA declaration that Elen lacks capacity to decide on publicity, then the court can authorise the local authority or Official Solicitor to make requests to remove photos or videos of Elen from her mother's Facebook accounts. Google (which owns YouTube) and Twitter likely have similar provisions.
Paragraphs 1 and 2 of the 30 June 2022 order were made under s.16(5) MCA, a provision that refers back to s.16(2) which in turn gives the court the power to "make the decision or decisions on P’s behalf".
The defendant’s decision to post information on her social media accounts is not a decision that Elen could make if she had capacity, as Elen does not have access to her mother’s social media accounts. The court made a best interests decision per s.16 MCA on Elen’s behalf that she herself could not make if she had capacity. The court therefore did not have the authority to make the injunctions in paragraphs 1 and 2 of the June order.
There is no doubt that the Court of Protection has the authority to make injunctive orders. Hayden J has recently held that, "Section 16 and Section 17 of the MCA conjunctively provide an entirely cogent framework for the granting of injunctive relief to give effect to the Court’s orders or directions in such cases where it finds it necessary or expedient to do so" -
The reason why the Court of Protection has the power to make injunctive orders is to make sure that its best interests decisions can be implemented. The injunction is mechanism of enforcement of the best interests decision. For example, in order to enforce a best interests decision about contact, the court may make an injunctive order against a named person not to contact P; or to only have contact with P at X time, at Y place, and for Z duration. The court could direct that the contact person is permitted to contact P only via text message but not telephone. The court could injunct the contact person not to contact P except for supervised contact at a contact centre every Tuesday between 2pm and 4pm. The court has wide and creative powers to put in place injunctive relief in order to enforce a best interests decision it has made on P’s behalf.
In a case that examined the court’s power to make injunctions, Keehan J made a decision that SF (a 24-
Injunctions are not limited to facilitating best interests decisions about contact. To facilitate best interests decisions about residence and care, a judge may make an injunctive order, for example, preventing a family member from obstructing social workers from entering the family home. This was the situation that arose before Poole J in Hull City Council v A (by her litigation friend) and others [2021] EWCOP 60.
In Mrs Macpherson’s case, the injunctions in paragraphs 1 and 2 of the 30 June 2022 order were not parasitic to a best interests decision.
On 30 June 2022, the court made three best interests decisions. The first was a decision on residence at paragraph 4. The second was a decision on disclosure sought by Northumbria Police. And the third was in relation to contact at paragraphs 6 and 7.
Paragraph 6 set out a best interests decision banning face-
In contrast, the court’s injunctive provisions at paragraphs 1 and 2 of the order are not linked to any best interests decision. Recording fortnightly telephone contact is not linked to the telephone contact taking place. Whether her mother records a conversation is not a decision that a capacitous Elen could make. She may ask her mother to record the conversation or not record the conversation, but the decision as to whether her mother will record the conversation is her mother’s decision.
Directing Mrs Macpherson not to post information about the proceedings or evidence about the proceedings or directing her not to upload recordings to her social media accounts is unrelated to the court’s best interests decisions about residence or contact, especially in this case where it is understood that Elen has no access to social media. If Elen had access to social media and did not like what her mother had posted online, she could ask her to remove it. Removal of posts/tweets from Mrs Macpherson’s accounts is not a best interests decision: they are not decisions that a capacitous Elen could make.
D(b): Setting up Mrs Macpherson up to fail
Injunctions have been in place in similar terms to Poole J's order of 8 December 2022 since 8 February 2021 [C35 of the CoP bundle].
In its judgment the court noted at para.17(iv) [J16] that:
"On none of the videos that I have viewed does she tell FP or staff that she is recording the conversation. She persists in recording these conversations, and posting them on social media, in the face of repeated court orders not to do so. That court orders have penal notices attached to them. On viewing the recordings, a pattern emerges in which typically, but not always, RT states to FP that she is being abused or that her medication is making her ill, manipulates FP into agreeing and then says, for the purpose of the recording, that FP is complaining of the matters which RT herself has stated earlier in the conversation. Given the number of recordings submitted to the court and their dates, there must have been periods over which RT recorded every telephone contact with her daughter and then posted the recordings on social media."
The court then made orders in the same terms. This set up Mrs Macpherson to fail, given the abundance of evidence before the court that Mrs Macpherson has consistently taken a completely different approach to the matters than the judge and the professionals caring for Elen. If the court wanted to stop Mrs Macpherson from recording contact, then the court should have directed that Mrs Macpherson must go to a contact centre where contact staff could check for recording devices so that she could have the fortnightly telephone contact with Elen from that contact centre.
The court knew that Mrs Macpherson was defiant in her views, observing in its judgment that she "showed no respect for the authority of the court and no appreciation of the need to ensure a fair hearing for all concerned" [para. 1, J2]. The court found that "She persists in recording these conversations, and posting them on social media, in the face of repeated court orders not to do so"
It being clear on the evidence that it was more likely than not that Mrs Macpherson would continue to make the recordings given her defiance in the face of the court over the course of extensive CoP proceedings. Other avenues were available to achieve the court's goal. Repeating injunctions that had had no previous effect was irrational and futile.
D(c): Contrary to principles of open justice
In paragraph 1(c) of its order of 30 June 2022, the court directed Mrs Macpherson not to "in any way publicise these proceedings". This order stems from the order made by HHJ Moir on 21 October 2020 who required Mrs Macpherson to give an undertaking "not in any way to publicise these proceedings or any evidence filed in the proceedings, including by way of posting on social media" (page C3 of the CoP bundle)
There is no transparency order in the previous CoP bundle. The only transparency order in the committal bundle is that made by Poole J on 8 December 2022 [D51-
(i) publish or communicate the Information or any part or parts of it, or
(ii) cause, enable, assist in or encourage the publication or communication of the Information or any part or parts of it.
(iii) Identify the parties other than as:
(a) The First Respondent: as FP
(b) The Second Respondent as RT
(c) The Third Respondent as ST
Paragraph 1(c) of the 30 June 2022 order places restrictions on Mrs Macpherson that go over and above the transparency order. That is irrational and impinges on Mrs Macpherson's Article 10 ECHR rights of freedom of expression. She is very critical of the court and should be allowed to say so.
Professor Kitzinger has advertised this committal hearing via the @OpenJusticeCoP Twitter account with its 5,244 followers. Through her @KitzingerCelia Twitter handle with its 12,100 followers, Professor Kitzinger has criticised the court in relation to the hearing on 8 December 2022 that, "This isn't how a committal hearing is supposed to be listed according to the Practice Direction". Her tweets are obviously lawful and she is entitled to express her views about the court process. On the other hand, Mrs Macpherson is not allowed to express her views about the court process.
The local authority makes multiple references to Mrs Macpherson breaching para. 1(c) of the 30 June 2022 order, including in its 11 January 2022 COP9 which references Mrs Macpherson tweeting on 8 December 2022 that,
"The hearing is adjourned until January. There was one reporter but there was no transparency. I offered him some information, but he didn't take it,
because Poole was against it. I made a position statement, but my solicitor refused to give to the Judge."
Sunderland County Council want Mrs Macpherson to go to prison inter alia for tweeting that.
If any member of the public had tweeted precisely the same thing, they would -
The court’s imposition of more restrictive reporting requirements on a party compared with the public is unreasonable, unnecessary and antithetical to the ethos of the Court of Protection's stated values (including in the listing for this hearing) of open justice.
The local authority and the court have known during the course of these proceedings since 2019 that Mrs Macpherson was (and is) part of a community of parents of people with special needs who use Facebook to communicate with each other, to swap stories and provide support.
This case is Mrs Macpherson's story too. She is expressing her right to freedom of expression, protected under Article 10 ECHR. In the case of PH and RH v Brighton and Hove City Council [2021] EWCOP 63, the BBC and Sky News made an application to lift reporting restrictions, an application supported by the applicants Pam and Roy Hickmott, the parents of Tony Hickmott (P). At para.29 of her judgment, Senior Judge Hilder said, "Mr Hickmott’s parents openly seek the proposed reporting. It’s their story too. Unless the application is granted, they won’t be able to set out the extent of their struggles to restore their family life." Although in the Hickmott case there were no restrictions on contact between Tony Hickmott and his parents, the principle is that parents of children/adults with disabilities are the chief champions for their children: the struggle for their children's rights, equality and justice is the parents’ story too.
In summary, by making the injunction in para.1(c) of the 30 June 2022 order prohibiting Mrs Macpherson from publicising these proceedings, the court removed Mrs Macpherson's rights in relation to open justice in these proceedings that members of the public continue to enjoy. The court's approach is unnecessary and manifestly unjust. Mrs Macpherson has been accused of breaching a direction that should never have been made in the first place. The court is invited to vary the order the order of 30 June 2022 by deleting paragraph 1(c), or -
Conclusions on deficiencies of paras. 1 and 2 of the 30 June 2022 order
Mrs Macpherson will shortly make an application to the Court of Appeal. The COPR 2017 do not deal with out of time appeals to the Court of Appeal, and r.20.5 states "The procedure for an appeal from a decision of a judge of the court to the Court of Appeal, including requirements for permission, is governed by the Civil Procedure Rules 1998." CPR 52.15(1) sets out that an application to vary the time limit for filing an appeal notice must be made to the appeal court. The order of 30 June 2022 notes that Mrs Macpherson was not legally represented at that time, and she remained without representation when she filed her appellant's notice.
The deficiencies of paragraphs 1 and 2 of the order of 30 June 2022 were not raised by Mrs Macpherson in her application for permission to appeal made within 21 days of the order. These matters were not dealt with in Poole J's refusal for permission to appeal on 30 June 2022 or Baker LJ's decision refusing permission to appeal of 21 September 2022.
Given what is at stake for Mrs Macpherson, it will be argued that permission should be granted so as to determine lawfulness of the order of 30 June 2022.
Until the Court of Appeal has determined the matter, this court should not proceed with the committal hearing.
(E) Mitigation
This section is drafted if the court rejects Mrs Macpherson's request not to proceed with the committal hearing.
It sets out the four reasons why the court should not sentence Mrs Macpherson to a period of imprisonment. They are: (a) Imprisonment is contrary to Elen's wishes and feelings and to her best interests; (b) Imprisonment is an overly draconian response to the uploading of social media posts; (c) Imprisonment is an unjust way to deal with disability-
The seriousness of the conduct of the contemnor, with reference to their culpability and harm caused, intended or likely;
In light of the seriousness, whether a fine would be a sufficient penalty;
If the custody threshold is met, the court should impose the shortest period that reflects the seriousness of the contempt;
Due weight to be given to mitigation including previous positive characters and similar matters;
Due weight to be given to the impact on others -
Reduction for early admission (it is noted that Mrs Macpherson made admissions during the hearing on 8 December 2022);
Consideration of suspending the term of imprisonment, especially if there is a serious effect on others.
E(a): Contrary to Elen's wishes and feelings, and to her best interests
Committal proceedings are not a type of proceeding under Part 7 of the COPR 2017 where P must be notified. However, the court "will seek to give effect to the overriding objective when it (a) exercises any power under these Rules; or (b) interprets any rule or practice direction." The committal hearing is governed by Part 21 COPR 2017, so the decision about whether to commit the alleged contemnor to a term of imprisonment is a decision where the court must give effect to the overriding objective.
The overriding objective is to deal with cases justly and at proportionate cost, and "includes, so far as is practicable" a number of considerations including "(b) ensuring that P's interests and position are properly considered" -
The litigation friend visited Elen on 11 January 2023 at the care home [G151-
It is not understood why the litigation friend decided not to discuss with Elen her wishes and feelings about her mother posting information about her and recordings of her online, or the possibility that her mother may go to prison for doing so. The primary role of a litigation friend is to communicate to the court P's wishes and feelings about a relevant matter. Although committal is not a best interests decision in which the court must, per s.4(6) MCA take into consideration P's previous and present wishes and feelings, her beliefs and values and other factors, the decision nonetheless is one that will affect Elen.
Mrs Macpherson considers that Elen would be very distressed to learn that her mother could be sent to prison. Sending Mrs Macpherson to prison could cause a serious downturn in Elen's mental health.
If Mrs Macpherson had any evidence that her recording contact with Elen, or her publishing information about Elen on her social media accounts, had any detrimental impact on Elen, Mrs Macpherson would not have breached the order. It is understood that Elen does not have access to the internet in hospital, so has not seen the posts.
Elen has given consent for the recordings to take place. On this video https://www.youtube.com/watch?v=vin1_qB9I2k Elen says "I give consent to my mother to record any conversations that may be used to get me help". It is a video that was uploaded on 31 May 2021 and has been viewed four times (including by the author of this skeleton argument).
In its judgment the court found that, "It is harmful and demeaning to [Elen] for her to be recorded and for the recordings to be published in this way" [para. 97(vi), J25]. This was an assumption based on no evidence. Equally plausible is that if Elen had capacity, she would be grateful to her mother for shining a light on her situation and her distress.
In its position statement filed on Friday, the local authority concedes that there is no evidence that Elen has suffered distress or mental ill health as a result of any publication.
Contrary to the assertion of the local authority otherwise, there is no evidence that Elen has seen any of her mother's Facebook etc. posts. It is remarkable that the litigation friend did not ask her about this. Mrs Macpherson understands that Elen is not allowed access to social media in the care home, and there is no evidence on any of the audio/videos of Elen mentioning anything about the posts.
In his view of 6 February 2019, r.15 expert psychiatrist Dr Ince said that "high expressed emotion" on Elen should be minimised: see para. 2.7.2.4 at [I40] of the CoP bundle. Her mother being sent to prison is likely to have a very high emotional impact on Elen.
The alleged breach of the injunctive directions has not impeded the court from making best interests decisions about residence, care and contact. No procedural damage has been caused to these proceedings, and there has been no deceit unlike Dhalia Griffith v P [2020] EWCA Civ 1676 where the defendant forged a court order. On the contrary, Poole J's judgment notes that Mrs Macpherson "persists in recording these conversations, and posting them
on social media, in the face of repeated court orders not to do so. That court orders have penal notices attached to them." [para. 17(iv), J16] and that she "has no intention of ceasing to do so" [para. 97(vi), J25].
The remedy for removing offending social media posts is not to send Mrs Macpherson to prison. Unless the court varies the contact schedule she will continue to have fortnightly contact in prison from where she will not be able to record the conversations. When she is released she has the option of continuing, and even if contact arrangements are put in place to make it impossible for her to record contact, she can choose whether or not to remove the existing posts.
E(b): Overly draconian
Committing Mrs Macpherson to prison for breaching a court order about her own social media accounts would be an overly draconian measure. Prison is an ineffective method of securing the court's ostensible goal, which is to remove posts from Mrs Macpherson's social media accounts. Prison would not change Mrs Macpherson's resolve -
Although the court, parties and social workers may be irritated or even offended by them, no-
Similarly to the Kirk case (cited above), the committal applications are otiose and should be disposed of by way of no punishment on Mrs Macpherson. She has suffered a great deal over the last few years by feeling that her voice has not been heard.
Prison would be an overly draconian punishment to impose on Mrs Macpherson who considers that she is exercising her right to freedom of expression. She has expressed her views about the situation of her daughter. Her daughter's surname is different to hers and cannot be jigsaw identified. When Elen gets better and discusses the situation with her mother and wants her to remove the posts, Mrs Macpherson will gladly do so. Until then, Mrs Macpherson will continue to campaign for her daughter.
Imprisonment would be contrary to the caselaw. In the last ten years, the Court of Protection has sentenced to only four people a term of imprisonment for contempt of court. In reverse chronological order:
The second case is North Yorkshire County Council v George Elliott [2019] EWCOP 37, HHJ Anderson sentenced Mr Elliott to 28 days imprisonment suspended for one year each of three breaches an injunction preventing him from communicating in any means with a particular young woman. Mr Elliott admitted three deliberate breaches within hours of the injunction having been made.
In Office of the Public Guardian v Imre Salter [2018] EWCOP 27, the contemnor was not sentenced to imprisonment. Williams J heard two applications to commit brought by the Public Guardian in relation to breaches of two transparency orders by publishing information about P’s identity and whereabouts. The breaches were admitted but there had been failures of procedure in that one of the committal notices referred to the wrong order and, more seriously, one of the orders had not been served personally. No order was made, as Mr Salter had confirmed he would abide by the order and that the purpose of the committal had been achieved.
In Devon County Council v Kirk [2016] EWCA Civ 1221, the Court of Appeal gave permission to appeal a sentence passed by the Court of Protection in relation to Mrs Kirk, a 71-
The third case is Re Whiting [2013] EWCOP B27, [2013] MHLO 119. Hayden J dismissed an appeal from Leslie Whiting whom a Tier 1 judge in the Court of Protection had been committed to prison. Mr Whiting had breached an injunction to protect P, a woman with learning disabilities. The injunction was about contact and prohibited Mr Whiting from going within 100m of P’s property, or communicating with her by any means.
And the fourth case where the contemnor was sent to prison is Derbyshire County Council v Kathleen Danby [2014] EWCOP B22, HHJ Cardinal sentenced P's grandmother to four months' imprisonment for breaching an injunction not to contact P, having made best interests decisions that P needed to have a period of peace from the grandmother's intervention in P's life.
In the four cases where the contemnor was imprisoned, there was an element of deceit (Griffith) and three (Elliott, Whiting and Danby) where the contemnor breached injunctions concerning contact with P.
Mrs Macpherson has not been deceitful: the opposite is true: she continued to campaign for justice on social media, and the committal application is not brought with regard to any breach of the injunction governing telephone contact at paragraph 8 of the order of 30 June 2022 [D7].
It is accepted that the court has wide powers to commit a contemnor to prison for a breach of any injunction, but that it would be wholly inappropriate to for Mrs Macpherson to become the fifth person in the last ten years who is sent to prison for breaching court orders, and the first to be sent to prison for expressing her views.
On Saturday 14 January 2022, the local authority circulated to the parties the case of HM Attorney General v Phillip [2021] EWHC 2473 (Fam), a judgment of the Recorder of Sheffield sitting as a High Court Judge in the Family Division. That case can be distinguished from Mrs Macpherson's case. Phillip H was held to taunt the court and be rude and disrespectful to the court and failed to attend court on three days when he was directed to do so and warned that if he did not, it would be regarded as a contempt. At paragraph 29, the court found that this caused the court a high level of inconvenience. None of those factors exist in the instant case. The similarities, if they do exist, is the publishing of videos to Facebook. Phillip H had posted videos on Facebook of his children and their mother and had shown scant regard for their welfare. Mrs Macpherson on the other hand, has continued contact with her daughter, loves her very much and has the utmost regard for her welfare: it is her love for her daughter that motivates her continued campaign for her daughter's justice (she accepts the court has a different view, but considers the court's view to be wrong). Her videos are largely of her, and where Elen can be seen, she is largely pixilated.
Although the Phillip case shares a similarity with the instant case (both defendants have uploaded Facebook posts), it can be distinguished from Mrs Macpherson's case given of the motivation and conduct of the defendant and the inconvenience to the court he caused which are contempts in the face of the court.
E(c): Trauma-
She complained of poor concentration and memory loss. Medication withdrawal was tried but her symptoms returned. Resumption of medication did not make her settle and there was a period of admission in December 2015. Over the next two years there were non-
Notes record that Elen may have a mild learning disability: see [I77] of the substantive CoP bundle. Research has recently been conducted into complex trauma in families who have children and adults with a learning disability and/or autism. dbch Baker, P., Cooper, V., Tsang, W., Garnett, I. and Blackman, N. (2021), "A survey of complex trauma in families who have children and adults who have a learning disability and/or autism", Advances in Mental Health and Intellectual Disabilities, Vol. 15 No. 5, pp. 222-
"Trauma results from an event, series of events, or set of circumstances that is experienced by an individual as harmful or life threatening. While unique to the individual, generally the experience of trauma can cause lasting adverse effects, limiting the ability to function and achieve mental, physical, social, emotional or spiritual well-
It is submitted that the Guidance is as relevant to the Court of Protection as it is to practitioners who provide treatment, care and support to the persons at the heart of Court of Protection cases. The Guidance encourages practitioners to realise that trauma can affect individuals, groups and communities. It encourages practitioners should recognise the signs, symptoms and widespread impact of trauma:
"Trauma-
Sending Mrs Macpherson to prison for posting private communication with her daughter and her critique of these proceedings would not be a trauma-
E(d): Carer's responsibilities
Mrs Macpherson is 61 years old next month. She and her 74-
Mrs Macpherson is the carer to her husband who has is rheumatoid arthritis, post sepsis syndrome and COPD. She helps him get in and out of the bath or shower (he cannot get out of the bath alone). He is no longer able to carry the weight of saucepans, so he is no longer able to cook or bake. He struggles in the garden. He is on disability benefits.
As for Mrs Macpherson, she has Crohn’s disease and needs to stay on a diet. She cannot eat processed food. She has heart palpitations.
(F) Conclusions
Mrs Macpherson will make a fresh application for permission to appeal to the Court of Appeal against paragraphs 1 and 2 of the order of 30 June 2022.
In circumstances where the Court of Appeal will be seized of the substantive matter that may have a bearing on the lawfulness of the order and therefore the validity of the committal applications, it would wrong for this court to proceed with the committal.
While Mrs Macpherson admits breaches of some of the allegations, as set out above, several allegations are vague and not proven.
If the court decides to proceed with the committal, sending Mrs Macpherson to a term of imprisonment for publicising these proceedings would be wholly wrong and contrary to the principles of open justice. The very suggestion that a person can be sent to prison in circumstances where members of the public would be free to publish exactly the same comments has a chilling effect on the operation of the Court of Protection and undermines efforts by the judiciary, legal practitioners and civil society that it is not a secret court.
Sending Mrs Macpherson to prison for publishing audio and video images of Elen is overly heavy-
If the court finds the custodial threshold is met, a suspended sentence is appropriate given (a) the likely serious impact on Elen's mental health; (b) the serious impact on Mr Macpherson who would be left without care; (c) the futility that prison would have on the social media posts; (d) the fact that there is no evidence that anyone -
If the court sentences Mrs Macpherson to a term of imprisonment, she will exercise her automatic right to appeal to the Court of Appeal pursuant to r.20.7 COPR 2017. In these circumstances -
OLIVER LEWIS
Doughty Street Chambers
15 January 2023