Judges dismiss appeal against sentence of imprisonment for “repeated breaches” of court order

In Macpherson v Sunderland City Council [2025] EWCA Civ 1159 (09 September 2025), Lord Justice Baker concluded: “Court orders must be obeyed, and although judges are reluctant to send someone to prison, particularly in the context of proceedings of this sort, repeated breaches of orders will almost invariably lead to custodial sentences being passed.”

The Court of Protection proceedings concerned a woman in her mid-thirties, "FP", who was diagnosed with cerebral palsy as a child, suffered meningitis in early adulthood and has been diagnosed with paranoid schizophrenia.

The appellant, Ms Macpherson, is FP's mother. Baker LJ noted: “For a number of years, she has been in sharp disagreement with many of the professionals who have treated and sought to assist her daughter.”

At the outset of the proceedings brought by the local authority, there was a dispute as to whether FP lacked capacity.

In 2020, HHJ Moir declared that FP lacked capacity to conduct proceedings, and to make decisions about where she should live, her care arrangements, and her contact with other people.

Baker LJ noted: “Her judgment has not been included in the papers for this appeal hearing, but from passages in a later judgment it is clear that Judge Moir made a series of adverse findings about the appellant's conduct, including her behaviour towards care workers which she described as abusive and unpleasant.”

HHJ Moir ordered that it was in FP's best interests not to be cared for at home by the appellant but instead to be moved to a care home. She made injunctive orders preventing the appellant recording FP and care staff or publishing information about the proceedings.

On 30 June 2022, following a further contested hearing, another judge, (Poole J), suspended face-to-face contact between FP and the appellant.

He renewed and extended the order restraining the appellant from publishing information in the following terms:

"1.  [The appellant] shall not:

a. record FP 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 FP;

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 published on any social media, video or streaming service, including YouTube, any video or audio recording of FP, recorded at any date.

2. [The appellant] 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 FP, and/or staff supporting FP, which is present on any of those sites or services."

In November and December 2022, the local authority filed three applications to commit the appellant to prison for contempt of court by breaking the order dated 30 June.

It was alleged that the appellant had uploaded to social media, including Facebook and Twitter, videos showing the appellant talking to FP on the telephone and links to video films of FP and articles about her written by the appellant.

At a hearing of the applications before Poole J on 8 December 2022, the appellant, who was represented by counsel, admitted the breaches, whereupon the judge adjourned the hearing for one month before considering sentence.

On 20 January 2023, Poole J delivered his judgment. He concluded that the published recordings disclosed conduct that was harmful to FP because it demonstrated the appellant feeding her daughter the line that she was being harmed by her carers - conduct which the judge described as particularly dangerous to FP's mental health given her diagnosis of paranoid schizophrenia.

It was the evidence of FP's litigation friend that FP had told him that her mother might be sent to prison for posting things on the internet.

Poole LJ observed: "[The appellant's] conduct has therefore placed the court in an invidious position. If she is imprisoned for her deliberate and repeated breaches of court orders designed to protect her daughter, the fact of the imprisonment may well cause distress to the very person the court has sought to protect. A sanction other than imprisonment risks sending a signal to the [appellant] and to others that the court will tolerate deliberate breaches of its orders."

Poole LJ therefore suspended the sentence for 12 months.

The appellant appealed against the finding of contempt and the sentence. On 4 May 2023, the Court of Appeal dismissed the appeal.

At a further hearing in June 2023, Poole J renewed the injunctions in the same terms as set out previously, again endorsed with a penal notice.

The appellant sent an email to the Civil Appeals Office, copied to the local authority legal unit, saying:

"Please don't be surprised if you see a lot more videos on social media. I also will reinstall all of the old posts and videos with material evidence that the Court forced me to delete in January of this year, except one video which is not pixelated."

On 15 November 2023, the local authority issued a further application to commit the appellant to prison for contempt of court. The appellant told the court that she was prepared to argue her case herself and did not seek an adjournment for representation.

On 22 January 2024, the hearing of the second committal application took place.

In his judgment, the judge observed that four of the alleged breaches involved the reposting of material which had been posted in contempt of court as found in the previous committal proceedings.

He recorded that, whilst the appellant accepted that she had acted in the way alleged by the local authority, she denied that she had been in breach of the injunctions. She asserted that she was entitled to act in that way in exercise of her Article 10 right to freedom of expression, and that the injunctive order was made illegally by a corrupt court, which did not provide her with her Article 6 right to a fair hearing.

The judge found that, despite her denials that her actions were in contempt, the appellant knew that she would be committing a contempt by posting the material, and that she showed “no intention” of removing the posts.

He passed a sentence of three months' imprisonment for each of the breaches committed in September 2023 to run concurrently and implemented the 28-day sentence passed but suspended in January 2023 to run consecutive to the three months' sentence.

At the present appeal, the appellant relied on the following grounds, as set out by Baker LJ:

1. Unfair trial (Article 6 ECHR) - The appellant was denied a fair hearing before Poole J on 22 January 2024. She was unrepresented despite repeated and documented efforts to secure legal representation. The hearing proceeded without basic safeguards, and without essential documents — including a promised expedited transcript. This denied her the right to a meaningful defence and access to a proper appeal.

2. Breach of article 8 and 10 ECHR - The injunctions and committal order failed to consider the appellant's right to family life and freedom of expression. There was no proportionality assessment under Article 10(2). The restrictions were indefinite, vague, and disproportionately punitive. The appellant was penalised for discussing her own experience while others (such as open justice commentators) could speak freely.

3. Procedural irregularities and abuse of process - There was sustained case mismanagement and abuse of process by the local authority and the court. Repeated late filings (e.g. COP9 applications served hours before hearings), failure to follow the Court of Protection Rules 2017, and failure to enforce disclosure obligations created an environment of injustice and coercion.

4. Judicial and expert bias; misuse of capacity law - Findings of incapacity relied on flawed, retrospective, and unrecorded assessments. No contemporaneous Mental Capacity Assessments were disclosed or examined. The court-appointed expert lacked independence and gave opinions outside the scope of the MCA 2005. The Court adopted these uncritically, in breach of the requirement for objective and time-specific capacity findings.

5. Unlawful deprivation of liberty; disregard of best interests - The injunctions issued were not based on a valid best interests decision under section 16 of the Mental Capacity Act 2005. They were therefore ultra vires. Moreover, the placement conditions and restrictions imposed on FP failed to meet the legal standard of necessity or proportionality under the Human Rights Act.

6. Denial of appeal rights due to missing transcript - In [2024] EWCOP 8, para. 48, the court ordered that an expedited transcript of the judgment be provided to the appellant. It was never delivered. The absence of the transcript denied the appellant a timely and effective right of appeal. This breach renders the order unsafe and unlawful.

7. Arbitrary and disproportionate injunctions - The committal order punishes an alleged breach of an injunction that should never have been made. Poole J himself acknowledged that the injunctions were likely to do more harm than good to FP, undermining their legitimacy. Punishing the appellant for breaching such an order is, in these circumstances, perverse. The injunctions failed to protect FP's welfare, served only to restrict the appellant's ability to protest, and lacked any lawful or proportionate basis. This renders the committal order arbitrary, contrary to Articles 8 and 10 ECHR, and an abuse of the court's discretion.

Analysing the case, Baker LJ said: “[The appellant] maintains that the professional agencies dealing with her daughter, and the courts, have ignored evidence for eight years. Her case, in short, is that, as the court has failed in its duty to protect her daughter from abuse, forced medication, professional collusion and institutional neglect, and wrongly proceeded on the basis that her daughter lacked capacity, the whole process was contrary to the Mental Capacity Act 2005 and the European Convention on the Protection of Human Rights and Fundamental Freedoms.

“Secondly, Ms Macpherson said that she had been entitled to act in the way she had because no one was listening to her and publishing information online was the only step she could take to protect her daughter. […] Ms Macpherson referred to other cases in which the courts have allowed a party to publish information relating to their complaints about the way cases have been handled by the NHS, other professional agencies, and the courts.

“Thirdly, Ms Macpherson insisted that she had done nothing wrong by posting video recordings of her daughter on social media. She said that she had ensured that FP's identity was kept concealed – all the video recordings were carefully pixellated. She submitted that there was no evidence that she had caused any harm to FP by posting the video recordings, a fact which had been acknowledged by Poole J.”

Baker LJ found that none of the above arguments undermined the central point on appeal – that the appellant “knowingly and deliberately” broke an order made by the court.

He said: “The fact that she profoundly disagrees with the order does not entitle her to disregard it.”

He noted that the fact other litigants in other cases have been given leave to publish information about their family members who have gone through family or COP proceedings afforded the appellant “no assistance in this case”.

He added: “Her rights under Article 10 have no bearing on the outcome of this appeal. She was ordered not to publish information about her daughter and deliberately acted in contravention of the order.”

Analysing the appellant’s arguments relating to “unfair procedure”, Baker LJ said: “When invited in court to identity ways in which the procedure adopted by Poole J had been unfair, Ms Macpherson cited only one point – that she had not been represented at the committal hearing in January 2024. It is clear from the judgment, however, that at the hearing on 22 January 2024, she did not ask for an adjournment to seek representation and was, in the judge's words, prepared to argue her case.

“Having found her in contempt, the judge considered again whether he should adjourn to allow her to obtain representation, and decided against that course. […] In those circumstances, I do not consider that he acted unfairly. There is nothing to support the assertion in the first ground of appeal that the hearing proceeded without basic safeguards or essential documents.”

Lastly, considering the proportionality of the sentence, Baker LJ said: “Ms Macpherson said that imposing a sentence of imprisonment on her would have an adverse effect not only on her daughter but also on her husband who is in poor health and requires care and support. On this point, however, I entirely endorse what the judge said in paragraphs 42 to 46 of his judgment, which in turn complied with the legal principles summarised by MacDonald J on Re Dahlia Griffith (supra).

“In my view a sentence of immediate imprisonment was plainly right having regard to the appellant's serious and repeated flouting of the order. She had already been given a suspended sentence on the earlier occasion for breaches of the order, and within a short space of time brazenly repeated the conduct during the period of suspension.”

He continued: “Court orders must be obeyed, and although judges are reluctant to send someone to prison, particularly in the context of proceedings of this sort, repeated breaches of orders will almost invariably lead to custodial sentences being passed. The sentence of three months, with the activation of the earlier suspended sentence in addition, was in my view entirely proportionate and appropriate.”

Dismissing the appeal, Lord Justice Baker concluded that none of the other matters raised in the grounds of appeal, or in the additional documents, or during the oral submissions put forward by the appellant assisted by her McKenzie friend, gave rise to “any concern” about the judge's decision to commit the appellant to prison.

Lord Justice Birss and Lady Justice Asplin agreed.

Lottie Winson