English and Welsh Courts - Miscellaneous

Case No: 12134721

NEWCASTLE UPON TYNE
COUNTY COURT

The Quayside
Newcastle upon Tyne
NE1 3LA

14th October 2013

B E F O R E: HER HONOUR JUDGE MOIR _____________________

Sunderland County Council		Claimant
	v
Lindsay McIntosh		Defendant

_____________________ Compril Limited Telephone: 01642 232324 Facsimile: 01642 244001 Denmark House 169-173 Stockton Street Middlehaven Middlesbrough TS2 1BY _____________________ Judgment
 

1. Her Honour Judge Moir : Sunderland City Council bring this application to commit Lindsay McIntosh to prison for breach of an order made by the Court. The background to this matter is that the first respondent PW by reason of earlier orders, but particularly the order of the 8^th August 2012, made interim declarations that the first respondent lacked capacity to litigate, to make decisions as to his residence, to decide with whom he should have contact, and to make decisions as to his property and finances. It was also declared that the first respondent lacks the capacity to make decisions as to the assessment of his care needs and how his care needs should be met.
2. Thus as long ago as August 2012 there was an interim declaration by the Court that the first respondent PW lacked the capacity to decide with whom he should have contact. The local authority were concerned about the contact which he was having with Lindsay McIntosh. It was the professional view that the contact and relationship with Lindsay McIntosh was detrimental to the welfare of PW and there were concerns about various aspects of the relationship.
3. The matter therefore was brought before the Court on an application to prohibit Lindsay McIntosh from attempting to contact or having contact with PW save in accordance with any arrangements agreed with and made by the local authority. It was ordered that any such contact as may take place should be supervised by the local authority with discretion to permit unsupervised contact if it was in PW's best interest.
4. The order prohibiting unsupervised contact was made by District Judge Goudie in Court of Protection Proceedings on the 25^th January 2013. That order was served upon Lindsay McIntosh who wasn't present, but the District Judge was satisfied that Lindsay McIntosh had been given proper notice of the previous order dated 12^th December 2012, and of the date and time of the proceedings before him He was satisfied that the hearing on the 25^th January should proceed in her absence.
5. The order was served on the 29^th January and I have before me a copy of the affidavit of service by the process server Simon Harris; that affidavit being dated the 13^th January 2013. On that occasion it is set out that the documents were inserted through the letter box of the property as directed and the affidavit confirmed that the documents served were the letter from Sunderland City Council and the Court order dated 25^th January 2013.
6. Within the order of District Judge Goudie on the 25^th January 2013 at paragraph 6, the District Judge gave permission for service of the order to be by hand delivery to LM's home address. The service took place at 128 Avonmouth Road, Farringdon in Sunderland. It has been confirmed to me this was the address at that time of Lindsay McIntosh, and it was again confirmed by reason of a further affidavit of service dated 16^th April 2013 subsequently to the breaches pleaded, but documents were served at 128 Avonmouth Road, Farringdon, Sunderland in respect of the subsequent applications and orders and Lindsay McIntosh was present within that property.
7. I am satisfied that service of the order prohibiting Lindsay McIntosh from having contact as directed or agreed by the local authority was served upon Lindsay McIntosh, and she was aware or could have made herself aware of the content of the order. As I have indicated Lindsay McIntosh is not present today, she has been served with notice of this application to commit and I have before me the certificate of service by Dave Marsh dated 12^th September of 2013. The letter which was delivered and served sets out clearly that the proceedings are to take place on Monday 14^th October at the Newcastle upon Tyne Law Courts on the Quayside at Newcastle upon Tyne. Details of the hearing were also set out in the notice which was served, and the draft order which was provided to Lindsay McIntosh.
8. I am satisfied therefore that she is aware or could have made herself aware of these proceedings and therefore the Court can proceed in her absence.
9. The local authority (the Applicants) allege six breaches of the order. Those breaches set out within the bundle provided to me at C70 within the affidavit of Derek Lodge dated 12^th March 2013. The applications to commit have been before the Court on numerous occasions, but have been adjourned because of difficulties with service and the non-attendance of Lindsay McIntosh. The allegations of breach are contained at paragraph 5 at C70 and detail allegations of breach occurring on the 5^th February, the 10^th February, the 3^rd March and the 10^th March. The first allegation is that, on the 5^th February 2013 at approximately 8:30am, Lindsay McIntosh was seen on the landing outside PW's property by his Outreach support worker Barbara Bute. The allegation is supported by a statement prepared by Barbara Bute dated 11^th March of 2013.
10. In fact there is some confusion in relation to the detail of that allegation and a further statement dated the 1^st June has been provided by Barbara Bute who sets out that,

"In my first statement at paragraph 2.1 I say that I noticed LM on the landing outside PW's flat. This is an error, LM was actually inside PW's flat on the landing at the top of his stairs."

11. She goes onto say,

"In my first statement at paragraph 2.3 I say when I enter PW's flat I asked if LM stayed over night, this again is incorrect. I asked PW this while I was inside his flat rather than immediately upon entering PW's flat."

12. Although the statement, the initial statement, is incorrect it is corrected by reason of the later statement.
13. The second allegation deals with incidents or matters occurring on the 10^th February 2013. The allegation sets out that Lindsay McIntosh, on the 10^th February 2013, was in PW's property during which visit she took PW's keys without PW's permission. The statement of Barbara Bute details that she asked PW if he had given LM the keys and PW said that he went into shower and when he got out of the shower both his keys and LM were gone. PW pointed to the settee where he had left his keys.
14. Alan Clinton in his statement at C38 sets out his involvement with PW on the 10^th February of 2013, in particular he sets out the background in that he gave PW a spare set of keys when PW had contacted Telecare Services to say that he had lost his keys and, during the course of the afternoon when Alan Clinton was present at PW's flat, he sets out that

"At 2:30 on Sunday 10^th February I returned to PW's flat to carry out his afternoon support, during my visit there was a knock on the door which PW answered, the caller was LM. LM did not come in and stayed at the door. LM said to PW you're going to have to stop saying things about me. LM was clearly under the influence of alcohol, LM was slurring and swaying. PW asked LM did she have his keys to the front door, LM replied no. At this point a green car pulled up in the front street and the male driver told LM to give PW his keys back. LM replied that she did not have them, LM then pulled out from her pocket two sets of keys, one of which were PW's which she then gave to PW and stormed off."

15. Kelly Tigh at C82 details her involvement in this matter in that she sets out that PW told her that LM had taken his front door keys. She says that during the discussion with PW, PW was distressed as he did not know what to do.
16. The allegation at (iii) refers to the same day and same incident. Alan Clinton setting out, as I have read, the attendance of Lindsay McIntosh at PW's property at around 2:30 on the afternoon.
17. Paragraph (iv) details the allegation of breach on the 3^rd March 2013. Lindsay McIntosh was found to be in PW's property under the influence of alcohol by PW's outreach support worker, Margaret Frankie. Margaret Frankie telephoned the police who removed Lindsay McIntosh from PW's property. The recordings are set out at C85 and at C114. The statement of Margaret Frankie provides her account of what occurred on that date namely that someone else was in the property with PW when she attended. She asked PW to ask LM to leave and she left for half an hour.
18. Paragraph 2.4 sets out

"Upon my return PW said that LM would not leave. PW did not appear upset by the fact that LM would not leave, LM remained in the bedroom and did not come out. I returned to the base and telephone the police for assistance. The police attended the base at 9:15, read the Court order and then went to PW's flat to remove LM if she was still there. The officer telephoned later and confirmed that they had removed LM from PW's flat and that they had taken her home, the officer said LM smelt of alcohol."

19. The further allegation at (v) states that on the morning of the 10^th March 2013 LM was seen inside PW's flat by his morning support Outreach Worker, Carol Wright. In a statement by Carol Wright dated 12^th March 2013 Carol Wright sets out that, when she attended PW's property, LM was in the flat. On the same date LM was seen getting into a taxi by Julie Berry; It is set out at C110. The statement is dated 30^th May of 2013 and at paragraph 2.1

"At 9am on Sunday 10^th March 2013 I witnesses both PW and LM leaving PW's flat and getting into an awaiting taxi. LM got into the taxi first followed quickly by PW."

She also sets out,

"When I attended at 2:00pm on the 10^th March he said he had been out to his Mam's and to LM's Mam's."

20. The local authority are concerned, as I have indicated, about these matters. I am told that there are continuing breaches of the order, but no details of those continuing breaches have been put before me and LM has not been served in relation to the continuing breaches and therefore it is specifically the breaches to which I have specifically referred which I am required to consider. I am satisfied that, on each of the occasions to which I have referred, LM was in breach of the order of the court. A penal notice was attached to the order of the Court and the Court therefore has to consider, upon finding the breaches proved as I do, what penalty for breach is appropriate.
21. Clearly the order has had no effect in regulating Lindsay McIntosh's conduct and the intention of protecting PW has not been achieved. The penalty for breach of Court order can be either financial or by way of imprisonment. A financial penalty in all the circumstances is not appropriate, but orders of the Court cannot be wilfully broken upon repeated occasions without the Court taking steps to enforce the orders.
22. I am satisfied that in all the circumstances there should be a sentence of imprisonment. The local authority have made it clear that it is not their wish to see Lindsay McIntosh in prison, but rather to protect PW who is their concern and responsibility, because of his lack of capacity and subsequent vulnerability. I have considered whether or not an immediate sentence of imprisonment is the most practical way of dealing with this matter in that, if I impose an immediate custodial sentence, the bailiffs will bring Lindsay McIntosh before this Court and the Court will then have Lindsay McIntosh present and be able to determine then whether the sentence at that stage should be suspended.
23. However, in all the circumstances, at this juncture, I deem it appropriate to make a suspended order and that the order be suspended upon the basis that there are no further breaches. So the order the court will make is a 14 day order of imprisonment suspended for a period....How long are you asking for Miss (inaudible) 12 months?
24. Miss (inaudible):- Yes Your Honour.
25. Her Honour Judge Moir:- Suspended for a period of 12 months upon the basis that no further breaches are occasioned. There are still proceedings on going in relation to PW which are the subject of a separate hearing.
END OF JUDGMENT

We hereby certify that this judgment has been approved by Her Honour Judge Moir.