Case No: 1233661t
The Family Court at Leicester
90 Wellington Street
Leicester LE1 6HG
19th September 2016
Her Honour Judge George
Leicestershire County Council – Claimant
Christopher Smith – Defendant
Telephone: 01642 232324
Facsimile: 01642 244001
169-173 Stockton Street
- Her Honour Judge George : This is an application for committal to prison brought by the Local Authority against Christopher Smith. The context for this application is an unusual and sad one.
- Mr Smith is the son of P, who is the subject of orders made during proceedings in the Court of Protection. Her Honour Judge Hindley made an order on 6th February 2015 at the conclusion of proceedings during which P’s best interests were considered. It was decided that the best interests of P were served by her living at her property and excluding from the property Mr Smith, who is her son, and who had been part and parcel of the difficulties that P had encountered in successfully living there and accessing the necessary support.
- HHJ Hindley ordered that Mr Smith should not return to property between certain hours of the day and he was forbidden from harassing or pestering his mother, threatening or using violence against her.
- These committal proceedings began in February of this year. Mr Smith is the principal respondent to them. The Local Authority is represented by Mr Reeder today. Mr Smith is not in attendance although he did attend the hearing on 7th P is represented by the Official Solicitor because she does not have capacity to conduct this litigation and the representative of the Official Solicitor before the court is Miss Giz.
- I have read the bundle of evidence and I was the judge who conducted the hearing on 29th July when the committal application originally came before the court and was considered at some length. On that occasion, Mr Smith attended court. He accepted in the face of the court that he had breached the injunction order made by her Honour Judge Hindley on numerous occasions since the order was made and up until July of this year he had effectively been living at P’s home address with her for some considerable period of time. Whilst he had been prohibited from attending at the property and being there overnight, it was quite apparent that he had breached the order by living there for a continuous period of time lasting many months.
- Mr Smith’s presence at the property and his relationship with his mother is a difficult one for her. She found herself in a situation in which she encountered difficulties with his behaviour towards her and as a result of a host of incidents which are set out in the papers which I will not recount in this judgment, she was removed from the property and has been living in a Local Authority care home since June 2016.
- The best interest decision for P that has been made is that she needs to return to her home if it is at all possible. That is something that she would like to do and it is something that those caring for her believe is in her best interests. However, it is apparent, just as it was in February 2015 that is not going to be successful if Mr Smith remains living in the property and hence the application to the court for Mr Smith to leave the property and for the court to enforce the order made in February last year.
- When this application was before me in July of this year, Mr Smith attended court and frankly accepted that he had been living at the property. He accepted that he was in breach of the order. He apologised to the court but explained that he had nowhere else to live, but he did say that he had made arrangements to provide himself with alternative accommodation and he gave some details about where that was. He said that he had paid a deposit, and he asked the court to allow him a period of time to leave the property.
- He also understood that the proposals of the Local Authority were for his mother to return to the property, first of all by way of visits to see whether she would be willing to live there again and whether it was possible and, if everything went well, with a view to her going back to live at her property in the longer term. He supported that proposal as I recall it and was willing to facilitate it and gave assurances to the court that he would vacate the property to enable his mother to return.
- P is 84 years old and, in addition to having issues that affect her capacity to conduct litigation, she has a number of physical health conditions and ailments which require treatment. Because of her age the Local Authority has been very keen to secure her return to the property as soon as possible. That was made clear to Mr Smith in July and I took it upon myself to explain to him in what I hope were clear terms the effect of the promises which he indicated he was willing to give to the court by way of undertakings and the potential consequences for him if he broke them. Those had previously been explained to him at some length by Mr Maguire and I believe counsel instructed on that occasion also.
- On 29th July, an order was made setting out the history of the proceedings and recording the undertakings that Mr Smith gave to the court which were as follows: he promised that he would leave and give vacant possession of the property by 3pm on 19th August 2016 and that he would not return to or attend at the property at any time for any reason after that time and date unless and until notified by the Local Authority in writing that he may do so or by further order of the court. A variation to HHJ Hindley’s order of February 2015 was made to permit him to reside at the property until 19th August at 3pm.
- I have read the witness statements of Miss C and Miss C and of the process server, Mr W, which set out a series of visits, conversations and drive-by sightings of the property identifying evidence of Mr Smith not having given vacant possession of the property and continuing to be there at various times of the day since 19th August when they have made their observations.
- I have reminded myself that as this is a committal application, the Local Authority has to satisfy the court to the criminal standard, that is beyond reasonable doubt, that the promises that Mr Smith gave to this court on 29th July have been broken. Whilst there has been no direct sighting of Mr Smith at the property by anybody since 19th August, I am satisfied beyond reasonable doubt that the evidence that I have read shows that Mr Smith has not given vacant possession of the property and that he has been present within the property or its environs on a number of occasions since.
- When access to the property was gained on 26th August, Mr Smith’s possessions were still found in the property and two rooms were locked and could not be accessed. Since that date, there have been many occasions when observations have revealed that lights have been on that were not on before; windows at the front of the property have been seen to be open and then on another day closed; a car has been sighted at the property; and somebody was heard in the garage. There is no evidence that anybody else is resident at or using the property or has access to it and I conclude that it is beyond reasonable doubt Mr Smith who has been in the property opening and closing the windows, using the lighting and so on. I suspect, but I make no direct finding, that he is continuing to live there today just as he has done for the previous 12 months or more.
- This case was heard by my colleague, His Honour Judge Bellamy, on 7th September 2016. It did not proceed on that date because he ruled that a formal application with witness evidence in support should be prepared. His order records on its face that Mr Smith attended court on that day and informed the court that he had stayed at the address of P on the night of 6th and 7th September in breach of his undertaking and that he had received the letter dated 2nd September sent to him by the Local Authority at the home of P and that he had also received papers for that hearing at P’s property. So that in itself is evidence beyond reasonable doubt that Mr Smith has breached the undertakings which he gave to the court on 29th July which were to leave the property by 3pm 19 August and not to return or attend at it at any time.
- Having read the statements of Mr W and Miss C, I am satisfied that Mr Smith has been served with this application and knows about today’s hearing. I am satisfied that he has had the opportunity to seek legal advice and, indeed, enquiries have suggested that he has indeed gone to see a solicitor but that solicitor has not been instructed to represent him or take any steps on his behalf, for example, to adjourn today’s hearing or secure representation for him.
- I am also satisfied that Mr Smith continues to be at the property since 7th September in light of the schedule of sightings that Miss C has set out in her most recent statement to the court. It is clear that Mr Smith is in contempt of court. He has broken the promises that he made and I have to decide what action to take.
- Sadly, Mr Smith has a history of breaching court orders. He did not comply with HHJ Hindley’s order of February 2015 and he has not complied with the promises he made to this court in July of this year. The purpose of this application and the only reason the Local Authority brings it, is to enable it to obtain vacant possession, to change the locks, to ensure that the property is safe and then to enable the visits by P to begin to see if she can return to live in her own home.
- When I consider all the options that are available to the court, nothing less than a very short period of detention in prison is going to be sufficient to enable the Local Authority to undertake the steps that it needs to take to enable P to return to the property which is hers and which she would like to live in.
- I have considered whether I could make a suspended order but, in my judgment, that is unlikely to be effective. Mr Smith has not complied with an injunction or promises to the court and he is therefore unlikely to comply with any suspended order and it will, in all probability, be ineffective.
- I have considered whether the court should issue a warrant for his arrest to arrange for him to be brought before the court so that the Local Authority could have a short period of time during which to change the locks. However, I have discounted that as an option. It would necessitate another hearing incurring further expense for the Local Authority, the Official Solicitor and therefore the taxpayer. There would need to be a judge available to deal with Mr Smith when he was arrested and brought before the court. That may or may not be possible to achieve in a timely fashion. The Local Authority would only have a few hours I which to secure the property. I think the better course is to order an immediate period of custody for Mr Smith so that he is removed from the property and the Local Authority has the opportunity to do what is necessary.
- The Official Solicitor supports this application although he knows that any period of custody for Mr Smith will be of concern to P and cause her great distress. The court is therefore urged to consider the shortest possible period of time to enable the locks to be changed and the Local Authority to gain possession. I bear that in mind. The context is extremely important and whilst the court has to be seen to enforce its own orders, this is not an application which is brought for any punitive reason or desire, but merely to try and ensure a practical solution for somebody who is living in a care home and is effectively detained against her wishes because Mr Smith will not vacate the property which is hers and may be capable of being her home again.
- The Local Authority tells the court that it needs 14 days in which to access the property, make sure it is safe, change the locks and prepare P for visits and, in my judgment that is the period of time which the court should take as its starting point for any committal order.
- The order that I make is to commit Mr Smith to prison for a period of 21 days. That will give the Local Authority the time it needs to take the steps it must take and to facilitate at least one visit for P whilst Mr Smith is in custody. There are likely to be difficulties after that given Mr Smith’s track record and the Local Authority will need to consider what action to take once Mr Smith regains his liberty.
- I will make an injunction order in the terms of the second undertaking that Mr Smith gave to the court in July namely that he shall not return to the property unless and until he is given permission by the Local Authority in writing that he may do so.
End of judgment