No Collateral Article 10 Defence to Breach of Court of Protection Injunctions: Immediate Custody for Repeated, Knowing Contempt — Macpherson v Sunderland City Council [2025] EWCA Civ 1159

Introduction

This Court of Appeal decision concerns an appeal against findings of contempt of court and the imposition of an immediate custodial sentence for deliberate and repeated breaches of injunctions made in Court of Protection (CoP) proceedings. The protected person (FP), a woman in her mid-thirties with complex neurological and psychiatric history, had been found by the CoP in 2020 to lack capacity to make decisions about residence, care, litigation, and contact. Her mother, the appellant, Ms Lioubov Macpherson, has long disagreed with the professionals involved and with the court’s determinations.

Over several years, and despite explicit injunctive restraints endorsed with a penal notice, the appellant published recordings and information identifying FP and professionals involved in her care. After admitting earlier breaches and receiving a suspended sentence in January 2023, further alleged breaches in September 2023 led to a second committal application. Poole J found contempt and imposed three months’ imprisonment (concurrent) plus activation of the earlier 28-day suspended term (consecutive). The Court of Appeal (Baker, Birss and Asplin LJJ) dismissed the appellant’s appeal.

The judgment sets out clear principles about obedience to court orders: a party’s disagreement with, or human-rights objections to, an order does not entitle self-help defiance; Article 10 ECHR cannot be used as a collateral defence in contempt proceedings; and where deliberate breaches are repeated during the currency of a suspended sentence, immediate custody will ordinarily follow. The Court also confirmed that the content of prohibited recordings is irrelevant to culpability once a clear prohibition exists, and upheld the fairness of proceeding to sentence without adjournment where a litigant in person has not sought one and representation is impractical.

Summary of the Judgment

The appeal raised three issues, helpfully framed by Asplin LJ:

Whether the appellant acted in contempt of court;
Whether the January 2024 committal proceedings before Poole J were fair;
Whether the punishment imposed was fair and proportionate.

The Court of Appeal held:

Contempt proved: The appellant knowingly and deliberately breached injunctions prohibiting (i) recording FP and staff and (ii) publicising the proceedings or publishing recordings. Her disagreement with the underlying orders did not excuse non-compliance. The Court rejected attempts to relitigate lawfulness of the injunctions in the committal appeal and stated that Article 10 had “no bearing” on culpability for contempt in these circumstances (paras 33–35).
Fairness of proceedings: The judge did not act unfairly in proceeding without adjourning for representation. The appellant did not seek an adjournment and indicated she would argue her case. Given the circumstances (including her being abroad and the low prospect of securing timely representation), Poole J’s decision was within discretion (para 36).
Sentence upheld: Immediate custody was plainly justified due to the seriousness and repetition of breaches within the suspension period, the need to uphold the authority of the court, and deterrence. The three-month term for the 2023 breaches (concurrent), together with activation of the prior 28-day suspended sentence (consecutive), was proportionate (para 37).

Ancillary points included allowing the appellant, as a litigant in person, to amend her grounds of appeal, while refusing fresh evidence that did not assist with the appellate issues (para 26). A preliminary detour on the appellant’s litigation capacity culminated in a High Court finding that she had capacity to conduct the relevant proceedings (para 22), leaving no capacity impediment to determination of the appeal.

Analysis

Precedents Cited and Their Influence

Re Dahlia Griffith [2020] EWCOP 46 (MacDonald J): Adopted by Poole J and endorsed on appeal as setting out applicable sentencing principles for contempt in the CoP. It guided the balancing exercise on culpability, harm, deterrence, and alternatives to custody (para 16 and 37). That framework helped justify immediate imprisonment here, given repeated, deliberate breaches during a suspended sentence.
Earlier appeal: Macpherson v Sunderland CC [2023] EWCA Civ 574: The appellant’s prior appeal against the first committal finding and sentence was dismissed. That appellate history reinforces that earlier determinations (including the lawfulness and proportionality of the injunctions) had already been scrutinized and found sound.
Interim capacity determination: [2024] EWCA Civ 1579 (King LJ): The Court of Appeal, concerned there was reason to believe the appellant might lack capacity to conduct proceedings, made an interim declaration and referred the issue to the CoP, appointing the Official Solicitor as litigation friend. This ensured procedural fairness pending the appeal’s resolution.
Final capacity ruling: Re Macpherson (capacity) [2025] EWCOP 18 (T3) (Theis J): Found the appellant had capacity to conduct the contempt proceedings and the appeal (para 22). This cleared the way for the substantive appellate determination without capacity-related adjustments.
Poole J’s first committal judgment: [2023] EWCOP 3: Found earlier breaches, assessed harm from the appellant’s manipulative interactions with FP, and imposed (but suspended) a 28-day sentence. That background was central to the second sentencing decision, in which repetition within the suspension period made immediate custody appropriate.

Legal Reasoning

1) Contempt for Breach of Injunctions: Knowledge, Deliberateness, and Irrelevance of Merits

The Court’s core finding is straightforward: the appellant knew about the injunctions (endorsed with penal notice) and deliberately disobeyed them. She posted and reposted material that (a) recorded FP’s voice, (b) revealed identifying information about FP, professionals, and placements, and (c) referenced the CoP proceedings (paras 11, 13–14). On that basis, contempt was established.

Central principles affirmed by the Court include:

No self-help defence: Profound disagreement with the order, or belief it is unlawful, confers no entitlement to disregard it. Orders must be obeyed unless and until varied or set aside (para 33).
Article 10 and 8 arguments are not a shield within contempt proceedings: The time to argue proportionality or lawfulness is when the order is made (or on appeal/variation), not via unilateral non-compliance. The Court held that Article 10 had “no bearing” on culpability for breach once an extant order barred publication (para 35).
Content of prohibited recordings is irrelevant to culpability: Where the prohibition is on making and/or publishing recordings and on publicising the proceedings, the question for contempt is the fact of breach with knowledge, not the substance of the material (para 34). This is an important practical clarification that curtails satellite disputes about content.
Pixelation does not rescue a breach: The alleged breaches “cumulatively” identified FP and others through names, relationships and contextual markers (para 13, para 20). Even if faces were pixelated, the order barred publication itself; context made FP readily identifiable.

2) Fairness of the January 2024 Hearing

The appellant argued she was unrepresented and had been denied a fair trial. The Court rejected this. She did not seek an adjournment to obtain representation, and told the judge she would argue her case. Poole J nonetheless considered whether to adjourn and, given that she was abroad with little prospect of securing representation in time, reasonably proceeded to sentence (para 36, citing the judge’s reasons at para 31 of his judgment).

The Court also found no substance in allegations that the hearing proceeded “without basic safeguards or essential documents.” The fairness challenge failed.

3) Sentencing: Repetition During Suspension, Deterrence, and Proportionality

Applying the principles summarized in Re Dahlia Griffith, the Court endorsed Poole J’s approach:

Seriousness and repetition: The appellant reoffended in the same way shortly after receiving a suspended sentence for similar breaches, and during the suspension period (paras 16–18, 37). That substantially aggravates culpability.
Specific and general deterrence: Upholding the authority of the court and deterring others from treating orders as optional were emphasized (para 17, especially para 43).
Alternative sanctions: The judge considered whether a fine was realistic (no means); prior suspension had failed to secure compliance; there was no indication the appellant would remove posts (para 16). Immediate custody was the only sanction meeting the gravity of contempt (paras 17, 37).
Impact on FP and relatives: The Court weighed distress to FP and the husband’s health needs (paras 7–8, 37). Those factors had previously justified suspension, but the subsequent, brazen reoffending eclipsed mitigation. Importantly, the Court recognized the “invidious position” created by imprisoning a parent of a protected party, yet held that persistent defiance must have consequences.
Jurisdictional practicalities: The appellant being in France meant any committal warrant would take effect upon her return (para 16). Nonetheless, the sentence serves the rule-of-law and deterrent functions.

4) Collateral attacks and fresh evidence

The Court permitted the appellant to amend her grounds (as a litigant in person facing custody) but declined to admit fresh evidence that did not assist with the appeal issues (para 26). More broadly, many complaints went to earlier welfare/capacity determinations and the propriety of the injunctions themselves. The Court would not relitigate those in a contempt appeal: the injunctions stood, had been renewed, and prior appellate challenges were dismissed as “totally without merit” (paras 4, 10, 35, 38).

Impact and Significance

For Court of Protection practice: The case confirms robust enforcement of publication and recording bans protecting a vulnerable adult. Even where a protected person may suffer distress from a committal, deliberate, repeated breaches—particularly during a suspension period—will attract immediate custody. Courts will prioritize the integrity of orders and deterrence when prior leniency has failed.
For litigants and campaigners: Article 10 and “public interest” narratives do not legitimise ignoring a valid injunction. The correct route is to apply to vary, discharge, or appeal the order. Self-help publication, including “pixelated” content, risks contempt where identification or prohibited content is obvious from context and where publication itself is barred.
For sentencing in CoP contempts: The decision consolidates the use of the Re Dahlia Griffith framework, emphasising that repetition within a suspension period almost invariably leads to immediate custody. Concurrent terms for grouped contempts and activation of suspended terms consecutively are orthodox and proportionate where new contempts mirror prior misconduct.
For procedural fairness and representation: Where a litigant in person neither seeks an adjournment nor has realistic prospects of obtaining representation, proceeding to sentence may be fair. However, judges should still consider the point expressly, as Poole J did here.
For cross-border realities: Physical absence from the jurisdiction does not insulate against findings of contempt and sentencing. Enforcement may await return, but the court will still vindicate its authority.

Complex Concepts Simplified

Court of Protection (CoP): A specialist court deciding whether an adult lacks capacity to make certain decisions and, if so, what is in their best interests. It frequently uses anonymity and publication restrictions to protect private welfare information.
Injunction with penal notice: A court order directing a person to do or not do certain things (e.g., not to publish recordings). A penal notice warns that breach can lead to committal (imprisonment) for contempt.
Contempt of court (civil contempt): Disobeying a court order knowingly. In the CoP context, publishing protected information despite explicit prohibitions is a common example. Once knowledge and breach are proved, personal disagreement with the order is no defence.
Suspended sentence and activation: A prison sentence may be suspended for a period; if the person reoffends during that time, the court can activate the suspended sentence, usually in addition to any new sentence.
Article 10 ECHR (freedom of expression): A qualified right. Restrictions may be imposed by law for legitimate aims (including protecting the rights of others and authority of the judiciary). Where a valid injunction exists, Article 10 is addressed at the stage of making/varying the order; it does not excuse subsequent disobedience.
Capacity to conduct proceedings; litigation friend: If there is reason to doubt a person’s capacity to instruct lawyers or make litigation decisions, the court may assess capacity and appoint a litigation friend (such as the Official Solicitor) to act on their behalf pending determination. Here, after an interim step by the Court of Appeal, the Vice-President of the CoP found the appellant had capacity.
Identification despite pixelation: Anonymisation fails if contextual clues (names, relationships, placement details, references to proceedings) allow identification. An order barring publication is breached even if faces are blurred.

Conclusion

Macpherson v Sunderland City Council reinforces three central propositions in the Court of Protection and contempt landscape:

Orders must be obeyed unless and until set aside: A party’s disagreement with the merits, or invocation of Article 10 and 8, is not a licence to defy an extant injunction. Contempt proceedings are not the forum for collateral challenges to the order’s lawfulness.
Content is immaterial when publication itself is prohibited: Where the injunction outlaws recording/publication, culpability turns on the fact of knowing breach; the court will not be drawn into adjudicating the content of the prohibited material.
Immediate custody is justified for repeated breaches during suspension: Having once suspended a term to avert harm, courts are entitled—and likely obliged—to impose immediate imprisonment upon recurrence, to vindicate the authority of the court and deter others.

The decision provides clear guidance to litigants, practitioners, and public authorities: the protective architecture of CoP injunctions will be rigorously upheld; social media publication contrary to such orders risks imprisonment; and arguments about free speech or the underlying dispute belong in applications to vary or appeal the order, not in post hoc defiance. In doing so, the Court of Appeal both consolidates existing doctrine and issues a practical warning against self-help in the sensitive arena of vulnerable-adult welfare litigation.