In a new case highlighting the apparent brutality of judgements handed out by ‘secret’ British courts, a 71-year-old grandmother has been jailed for refusing social workers’ demands to bring her 80-year-old brother back to UK from an Algarve care home.
As the Daily Mail explains, details of this case were only made public this week – nearly two months after septuagenarian Teresa Kirk was handed a six-month jail sentence.
The presiding judge “conceded” that Mrs Kirk’s refusal was based on “deeply held sincere beliefs” that her brother was and is happy in the care home that she chose for him.
He suffers from dementia and has already been deemed not to have “capacity” to make decisions about his residence and care, says the paper.
Mrs Kirk took the decision to move him to Portugal “to protect his interests”, despite the fact that social workers felt these would be best protected by remaining in a care home in South-West England.
The Daily Mail adds that it is not able to “name the elderly man, or to describe his relationship to Mrs Kirk.
“Even the name of his cat cannot be published for legal reasons” in UK.
The Resident only learnt of the relationship of Mrs Kirk to the man elsewhere described as MM from a concerned reader.
According to news stories, MM was born in Madeira but settled in Devon as many as 50 years ago.
“When his health began to decline because of dementia in 2014, Mrs Kirk moved him into her home in Sussex. After social workers said he should live in a care home, she travelled with him to Portugal instead”, says the Mail.
In 2015, Mrs Kirk refused to comply with the first court order insisting on her brother’s return to UK.
The Mail explains that in the intervening time, her brother’s health has declined and he is now in a care home in the Algarve.
In June this year, Mrs Kirk was faced with a second court order, “but the managers of the Portuguese care home refused” to allow MM to leave “without the permission of Mrs Kirk”.
“After she failed to yield to the court, Mr Justice Newton said he had ‘no alternative’ but to jail her”, continues the Mail.
“He said at a hearing made in August but unpublished until now: ‘I acknowledge that she has deeply held, sincere beliefs as to the best interests of MM and is genuinely concerned about his welfare.
“[But] I have reluctantly concluded that … I am left with no alternative but to pass a sentence of imprisonment, however much I have made it perfectly clear that I do not wish to do so.”
Mrs Kirk, who has a daughter and four grandchildren who she regularly cares for, is understood to have been given a last chance to change her mind after her sentencing, said the Mail. “She refused, and was arrested at her home in Sussex a fortnight ago” for contempt of court.
Her former husband Chris Kirk said Mrs Kirk called him at 11pm on the night of her arrest “to say police were knocking at her door”.
“After that she simply disappeared,’ he told the Mail. “I could not contact her. I asked the police if they could tell me what had happened, but they said they had no information and if I was worried I should report her as a missing person.”
With other news sources picking up the story, John Hemming, the former Liberal Democrat MP who has been campaigning against secret British courts, saying they are “stacked heavily against individuals and in favour of local authorities” told ITV: “What is very important about this case is the public have no idea as to the validity of the reasoning for the court order. I have a better understanding – and in my view it stinks.
“This would be wrong if (Mrs Kirk) was 25, but she is 71, and has been imprisoned for six months.
“I have been worried by secret imprisonments for some time”, he said.
“In this case, the judgement was held back from publication until some weeks after she was sent to jail”.
The Mail quoted former pensions minister Baroness Altmann as saying Mrs Kirk’s jailing was ‘cruel and unnecessary’.
“How can it be right when you are trying to do your best for a loved one for the courts not to understand and respond with compassion?” she told the paper.
“This is someone who has been doing her best in the face of a social care system which is in absolute crisis.”
This is a story that will create yet more controversy in Portugal as lawyers here are demanding answers over the number of Portuguese parents who have lost children to the British care system (click here).
National tabloid Correio da Manhã has already picked it up, revealing that Mrs Kirk and MM had sold the property in which he lived in the UK. “The money was going to buy a larger house in Portugal, but a denouncement led the municipality of Devon to block the deal and freeze the elderly man’s assets, in April 2015”.
Devon County Council told reporters that “any decision regarding where a vulnerable adult should live is entirely a matter for the Court of Protection”.
This court was set up under Tony Blair’s Mental Capacity Act, adds the Mail, “to decide the affairs of people who cannot make decisions for themselves”.
But Mrs Kirk’s defence counsel has told CM that MM is not simply “happy and close to family” in the Algarve, he is “very fragile, and any move could cause his death”.