Removal from jurisdiction – which court decides?
The President of the Court of Protection has ruled that he has no jurisdiction to consider an application in relation to the personal welfare of a mentally incapable individual (‘PO’), who was moved to Scotland from Worcestershire by her son (‘GO’). This case primarily deals with the legal principle of habitual residence and considers the ambit of the Court of Protection’s jurisdiction.
The matter relates to PO, an 88 year old lady and mother to four children, the Applicant (‘JO’), her sons (‘GO’ and ‘RO’) and another daughter (‘MP’). PO lacked the mental capacity to decide where she should live. Until 2012 PO lived in her own home in Worcestershire and was supported by a mixture of her family and Worcestershire County Council, who had been involved since 2009. Under an Enduring Power of Attorney executed in 2004 by PO and subsequently registered in 2010, GO and RO were appointed as PO’s financial Attorneys.
In April 2010 PO’s son GO moved her to Scotland, initially to his own home, but quite shortly after to a care home located within the area of responsibility of Inverclyde Council (‘the Council’). In May 2012, the Council became aware of PO and her circumstances and applied to the Sheriff Court for a Welfare Guardianship Order under the relevant provisions of the Adults with Incapacity (Scotland) Act 2000 (‘2000 Act’). The application was made on the basis that although PO was not habitually resident in Scotland, she was present there, and it was urgent that the application be dealt with. It was contended that the Scottish Courts had jurisdiction by virtue of para 1 (c) of Schedule 3 to the 2000 Act (the analogous English provision being paragraph 7 (1) (c) of Schedule 3 of the Mental Capacity Act 2005)
In July 2012 the Sheriff made an interim Welfare Guardianship Order appointing the Council’s Chief Social Work Officer as PO’s Welfare Guardian with power in relation to her personal welfare. This was extended to three years in December 2012.
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JO made an application to the Court of Protection for an Order to return PO to England. The Council responded, with the support of PO’s other children, by applying under Rule 87 of the Court of Protection Rules 2007 for a declaration that the Court of Protection has no jurisdiction to hear JO’s application on the basis that PO was no longer habitually resident in England and Wales, alternatively declining to exercise any jurisdiction it may have. Additionally, JO made a separate application seeking to restrain the sale of PO’s house in Worcestershire.
The fundamental question to be considered was whether PO was habitually resident in England and Wales or Scotland.
The application by both JO and the Council were heard before the President of the Court of Protection. The President had to review certain parts of the 2000 Hague Convention on the International Protection of Adults. The Convention had been ratified by the UK in relation to Scotland alone. In England and Wales it is given effect, but only to the extent of the 2005 Act. The President specified that he had to have regard for the 2005 Act rather than the Convention itself.
Section 63 of the 2005 Act headed (‘International protection of adults’) provides as follows:-
“Schedule 3 –
gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm.5881) (in so far as this Act does not otherwise do so), and
makes related provision as to the private international law of England and Wales.
The material provisions in Schedule 3 are to be found in paragraph 7, which provides as follows:
‘(1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to-
an adult habitually resident in England and Wales,
an adult’s property in England and Wales,
an adult present in England and Wales or who has property there, if the matter is urgent, or
an adult present in England and Wales, if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to him
(2) An adult present in England and Wales is to be treated for the purposes of this paragraph as habitually resident there if –
(a) his habitual residence cannot be ascertained
(b) he is a refugee, or
(c) he has been displaced as a result of disturbance in the country of his habitual residence.”
The President did not refer to paragraph 8, which in accordance with paragraph 35, has effect only if the Convention is in force in accordance with Article 57.
If there is a dispute over jurisdiction then rule 87 should be considered. Rule 87 sets out the procedure for disputing the Court’s jurisdiction and in essence contemplates two conceptually distinct powers in the Court of Protection:-
- The power to determine that it has no jurisdiction
- The power to determine that it should not or “will not” exercise its jurisdiction
The President concluded that PO was not habitually resident in England and Wales and that he had no jurisdiction under paragraph 7 (1) (a) to consider an application in relation to her personal welfare. He confirmed that PO had not been wrongfully removed to Scotland but the move was something that was reasonable and was sensibly undertaken by, or in agreement with three of PO’s four children in what they saw as her best interests. He clarified that they had authority conferred on them by the doctrine of necessity and although JO was of a different opinion to them, this did not rob them of that authority.
He concluded that although he had jurisdiction to consider a renewed application brought by JO with regard to PO’s property in Worcestershire, he made a declaration under Rule 87 (1) (b) that he would not exercise such jurisdiction because the convenient forum for this issue was Scotland being inextricably linked with the issues of her personal welfare which Scotland had jurisdiction to consider.
The President stated that habitual residence is in essence a question of fact to be determined having regard to all the circumstances of the particular case. Habitual residence can in principle be lost and another habitual residence acquired on the same day and referred to Re A  UKSC 60  3 WLR 761 and the Lagarde report.
He explained that for an adult who lacks capacity to decide where to live, habitual residence in principle can be lost and another habitual residence acquired without the need for any court order or other formal process such as the appointment of an attorney or deputy.
The President stated that the doctrine of necessity applies as in Re F (Mental Patient: Sterilisation)  2 AC 1.The doctrine of necessity requires a decision to be taken by a carer or relative which is reasonable and arrived at in good faith and taken in the best interests of the assisted person. He stated that in his judgment there is nothing in the 2005 Act that displaces this approach and sections 4 and 5 pre-suppose that such actions are not unlawful per se. However, the President stated that the doctrine of necessity is not a licence to be irresponsible. It will not apply where there is bad faith or where what is done is unreasonable or not in the best interests of an assisted person. Accordingly, there will be no change in the individual’s habitual residence if the removal has been wrongful in such circumstances with which Hedley J was confronted in Re MN or if the removal as in Re HM (Vulnerable Adult: Abduction)  EWHC 870 (Fam)  2 FLR 1057, in breach of a court order.
He confirmed that the determination of an incapacitated adult’s habitual residence is to be assessed by reference to all the circumstances as they are at the time of the assessment. He stated that the principle of perpetuation fori has no application in this context and that the relevant date for determining PO’s habitual residence is that date of the hearing: i.e. July 2013 and not the date when JO made her application: November 2012.
The President considered the Court’s discretion and why in some particular cases it will decline to exercise its jurisdiction on the ground of ‘forum non conveniens’, applying the principles first laid down in Spiliada Maritime Corp v Conculex Ltd  AC 460. He stated that the principle would apply subject to the provisions of the Convention as and when ratified. He confirmed, after considering the Spilidia principles, that Scotland is the ‘forum conveniens’ and that there are no special circumstances requiring the Court of Protection to assume jurisdiction. He noted that a decision to exercise jurisdiction on the basis of ‘forum non conveniens’ is not within the scope of section 1 (5) MCA 2005.
- The judgment is useful for Practitioners as it highlights that habitual residence can be lost and another habitual residence can be acquired on the same day.
- In relation to the doctrine of necessity, the Court will look favourably at decisions made by relatives and carers on behalf of a mentally incapacitated person if the decision was reasonable, made in good faith and taken in his or her best interests.
- The President confirmed that if the removal of a mentally incapable person is wrongful then there will be no change of habitual residence.
- This case confirmed that The Hague Convention on the International Protection of Adults 2000 had been ratified by the UK only in relation to Scotland. In England and Wales the Convention had been given limited effect by the Mental Capacity Act 2005.
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