The Edith Ellen Foundation
reported in our article Mental Capacity of Teresa Kirk a grandmother of 71years
old who was jailed for trying to support a gentleman returning back to his
native home country.
Teresa Kirk, refused to give her elderly brother up to UK social
services and was jailed for this, has finally been freed from jail.
But why did she have to be
jailed in the first place?
Her brother, who she’s known a
lot longer than Social Services and those trying to retrieve him back to the UK,
is safe in his Tavira care home.
But Social Services believed they
knew better and that they were acting in his best interests.
Her lawyer Colin Challenger, faced various hurdles
trying to lodge the appeal but the head of the family court Sir James Munby
agreed that the system had failed Mrs Kirk, and that he had ‘real concerns’ and
a ‘sense of unease’ over the case, which in UK cannot be truly explained due to
reporting restrictions.
From the
outset, it was made very clear that Mrs Kirk has Power of Attorney over her
Alzheimer-sufferer brother Manuel Martin’s affairs, and the fact that she was
jailed for deciding to put him in a Tavira care home, and not an English one,
should have been ‘up to her’, and not an issue over which she could face any
kind of prosecution.
As it was, Mrs
Kirk’s case came under the ambit of Britain’s so-called ‘secret courts’, and if
it had not been for the Dail Mail newspaper, details of it might never have
surfaced.
For now, the
71-year-old is “back home with her daughter and grandchildren” and the ‘main
appeal’ is likely to be heard before sometime this year.
Which means that
for the time being Manuel is safe from UK interference.
This case does raise issues around the use and
understanding of The Mental Capacity Act and Deprivations of Liberty by those supposedly
looking after the best interests of those of us who require it. Even the Court of Protection failed to
protect those it was meant to, upholding the claims of Social Services that
they had more rights to deal with this case than they really did.
What Social Services need to remember is that they
are not all seeing all knowing, they are not infallible far from it in fact.
I am not legally trained and my understanding of
the MCA may be wrong, but the facts of the case are:
(1)
Mrs
Kirk had Power of Attorney
(2) Mrs Kirk had known her brother and his
wishes long before Social Service intervened. He came to England as a young man from
Portugal, has British citizenship, but always planned to return to his home
country in retirement.
(3)
Manuel
and Mrs Kirk are Portuguese, and had lived in the UK for 50years, but their
home would always be Portugal.
(4)
Mrs Kirk was jailed following a dispute over
choice of care home for her brother
(5) Social
workers had only met him fleetingly
(6) Mrs
Kirk refused to sign legal papers transferring responsibility for the old man's
welfare from herself to the State
(7) Manuel
loves the sunshine and life in Portugal, the country he was actually born
in. If he came back to the UK he would
surely be worse off. He speaks
Portuguese as his first language, so he can communicate with the other
residents and staff
There are two sides to every story though, and Social Services have a side:
(1) Social
Workers spent 2 hours in the Tavira
care home, where they saw themselves how happy and settled Manuel was.
(2) The Social Workers still recommended that
Manuel be brought back to the UK as they felt he would be happier (that’s
happier than the happy healthy Manuel they’d seen in Tavira care home!)
(3) They want Manuel to pay £2,800 a month for
his UK care whereas in his home country his fees are £1000 a month
(4) One
of the planks of their argument is that he would be happier in the UK, where he
has a cat (which, bizarrely, also cannot be named at the request of social
workers in case this identifies him) which may or may not still be alive after Manuel
put it in a cattery but which also would not be allowed in the British Care
Home
(5) The
care home Social Services want to place Manuel in recently hit the headlines
after one 84-year-old resident, a retired banker with dementia, died after
choking on a piece of roast beef at lunch. An inquest last year said 'key
issues' leading to the tragedy were inexperienced staff and a failure to puree
the man's food.
The shadowy court of
protection has draconian powers to make far-reaching rulings about almost every
aspect of a citizen's life, and their relatives', too. The judges presiding
over it can compel people to undergo surgery, use contraception, or even decide
if their life support system is switched off.
Just as worryingly, the court
can put someone in hospital, or a designated care home, if the State deems it
to be in their 'best interests'. But who’s to say the State has the best
interests of some one?
In other words, the life of
that person, who may be mentally impaired or simply elderly, is under the
control of the court — and woe betide anyone who breaks the rules imposed by
it. Plenty of people who have done so
have been sent to prison for contempt of court, just like Mrs Kirk. Indeed,
every year, up to 200 people are jailed by the family courts system for
breaching its secrecy rules or disobeying diktats from social workers.
How this case unfolded is
profoundly disturbing, Social workers and the Court of Protection have ridden
roughshod over Mrs Kirk, in an even more draconian move, the court (with the
support of social workers) has refused to allow the English Press even to
mention the man's relationship to Mrs Kirk.
Lord Justice McFarlane, said:
'No one has stood back and said: 'What are we doing here sending this
71-year-old lady to a six-month prison sentence in order to achieve a welfare
benefit for [the elderly man]?' '
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