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England and Wales Court of Protection Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Royal Free London NHS Foundation Trust v AA & Anor [2021] EWCOP 68 (14 December 2021) URL: http://www.bailii.org/ew/cases/EWCOP/2021/68.html Cite as: [2021] EWCOP 68, [2022] COPLR 336 |
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Strand, London, WC2A 2LL |
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B e f o r e :
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ROYAL FREE LONDON NHS FOUNDATION TRUST |
Applicant |
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- and - |
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AA [1] (by her proposed litigation friend, the Official Solicitor) NA [2] |
Respondents |
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Miss Emma Sutton (instructed by the Official Solicitor) for the First Respondent
Mr Varun Zaiwalla (instructed by Zaiwalla & Co) for the Second Respondent
Hearing date: 14 December 2021
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Crown Copyright ©
Mrs Justice Knowles :
(1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to—
(a) an adult habitually resident in England and Wales,
(b) an adult's property in England and Wales,
(c) an adult present in England and Wales or who has property there, if the matter is urgent, or
(d) 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.
"24. The starting point for consideration of the court's jurisdiction in cross-border matters is Schedule 3 of the Mental Capacity Act 2005 ["the MCA"]. Section 63 of the MCA provides as follows:
"Schedule 3 –
a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2020 (Cm. 5881) (insofar as this act does not otherwise do so), and
b) makes related provision as to the private international law of England and Wales."
The 2000 Hague Convention ["the Convention"] relates to "adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests". Like other Hague Conventions, this provides a framework for the mutual recognition of measures by contracting states. Underlying the Convention is a presumption that jurisdiction over persons to whom the Convention applies will primarily be exercised by the courts of the state in which they are habitually resident. The Convention came into force on 1 January 2009 (following its ratification by three states). It has now been signed by 18 states including the United Kingdom and Ireland. Though the United Kingdom has ratified the Convention, it has declared that the ratification applies to Scotland alone and thus the Convention is not yet in force in England and Wales. Ireland has not ratified the Convention. Therefore, the Convention does not apply in this case and recourse must thus be had to the wider provisions of Schedule 3 of the MCA.
25. In summary, certain provisions within Schedule 3 which make direct reference to certain aspects of the Convention (such as cross-border placements) are not yet in force. However, the greater part of Schedule 3 is in force and these provisions are clearly based upon the Convention and make use of Convention terms including "habitual residence". Schedule 3 para 2(4) expressly provides that "an expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention". The effect of the parts of Schedule 3 currently in force is to (a) clarify the scope of the Court of Protection's substantive jurisdiction and provide for the court to exercise this jurisdiction in certain circumstances even where the person in question is not habitually resident in England and Wales; and (b) provide for the recognition and enforcement in England and Wales of orders of foreign courts relating to persons who lack capacity. However, these provisions are of general application and, unlike the Convention, do not require the relevant foreign state to have assumed reciprocal obligations to recognise English orders.
26. Schedule 3 para 7(1) 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 –
a) an adult habitually resident in England and Wales, b) an adult's property in England and Wales,
c) an adult present in England and Wales or who has property there, if the matter is urgent, or
d) 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."
27. It should be noted that "adult" has a specific definition under Schedule 3 para 4, namely being a person who "as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests, and has reached 16". This definition is not identical to the Convention meaning and is not confined to persons who lack capacity within the meaning of section 2 of the MCA. Further, it should also be noted that Schedule 3 para 7 is not on all fours with the Convention. Under Article 9 of the Convention, the authorities of a Contracting State where the property of the adult is situated have jurisdiction to take measures of protection concerning that property, "to the extent that those measures are compatible with those taken by the authorities of the state of habitual residence". That limitation is not found in Schedule 3 para 7(1)(b), so where an adult has property in England and Wales, the Court of Protection has jurisdiction over it concurrent with the courts of the state of habitual residence (see Re O (Court of Protection: Jurisdiction) [2014] Fam 197 at [10] and [28]).
Habitual Residence
28. "Habitual residence" is defined in neither the MCA nor the Convention. In An English Local Authority v SW and Others [2014] EWCOP 43, Moylan J (as he then was) held that the meaning to be given to habitual residence in the context of the Convention and the MCA should be the same as in other family law instruments such as the 1996 Hague Child Protection Convention and Council Regulation EC 2201/2003 (Brussels IIA) though he also acknowledged that different factors will be relevant and will bear differential weight (see [64]-[65]).
29. Thus, habitual residence is to be determined in accordance with the guidance given by the Supreme Court and the Court of Justice of the European Union in a number of recent cases. The following principles are key:
a) Habitual residence is a question of fact and not a legal concept such as domicile (A v A (Children: Habitual Residence) [2014] AC 1 at [54]);
b) The test adopted by the ECJ is the "place which reflects some degree of integration by the child in a social and family environment". The child's physical presence should not be temporary or intermittent (Proceedings brought by A (Case C-523/07) [2010] Fam 42 at [38]);
c) Consideration needs to be given to conditions and reasons for the child's stay in the state in question (Mercredi v Chaffe (Case C-497/10PPU) [2012] Fam 22 at [48]);
d) The essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce (see A v A above at [54]);
e) Both objective and subjective factors need to be considered. Rather than consider a person's wishes or intentions, it is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there - their state of mind (Re LC (Children) [2014] AC 1038 at [60]);
f) It is the stability of the residence that is important, not whether it is of a permanent character (Re R (Children) [2016] AC 76 at [16]); and
g) Habitual residence is to be assessed by reference to all the circumstances as they exist at the time of assessment (FT v MM [2019] EWHC 935 (Fam) at [13]).
30. In Re LC (Children) (see above), Baroness Hale stressed the need to look at the circumstances which led to the move in question:
"The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then and later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another".
31. In An English Local Authority v SW (see above), Moylan J made the following additional points:
a) The overarching test for habitual residence should be the same whether one is considering adults or children, although different factors may or will have differing degrees of relevance [66].
b) The expression "degree of integration" is an overarching summary or question rather than the sole, or even necessarily the primary factor in the determination of habitual residence. The court's focus should not be narrowed to this issue alone as a question of fact [68] and [72].
c) Integration, as an issue of fact, can be an emotive and loaded word. It is not difficult to think of examples of an adult who is not integrated at all in a family environment and only tenuously integrated in a social environment but who is undoubtedly habitually resident in the country where they are living. Integration as an issue of fact can also raise difficulties when a court is determining the habitual residence of a person who lacks capacity [70].
d) The court "should not lose sight of the wood for the trees" [71].
32. Where an incapacitous adult has been moved from one jurisdiction to another, the question of the authority that the person effecting the move had to make it is also important. In Re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] EWHC 1926 (Fam), Hedley J held that a move which was wrongful should not effect a change in the habitual residence of the incapacitated adults and should leave the courts of the country from which that person was taken free to take protective measures [22]. In determining whether a decision is wrongful, the court must look not only at the terms of the authority conferred upon the person taking the decision, but also at their motives for taking that decision.
33. The fact that the person effecting the move has formed a subjective view that it is in P's best interests may not suffice to prevent the move from being wrongful. Pursuant to s.4(9) and s.5(1)(b) of the MCA, a person making a decision on behalf of an incapacitous adult must "reasonably believe" the decision to be in their best interests. Thus, in Re QD (Jurisdiction: Habitual Residence) (No 1) [2019] EWCOP 56, Cobb J held that a decision by P's children to move him from Spain to England was wrongful and that they could not rely upon the doctrine of necessity [29]. The judge indicated that, whilst they may have believed that they were acting in P's best interests, this was not a reasonable belief on their part"
(1) Until 2 November 2021, when AA had capacity, it appears that she chose to live in England. The evidence is that prior to her hospitalisation she was 'well' and there were no concerns regarding her cognitive functioning;
(2) The medical records refer to AA undergoing treatment for an ameloblastoma in the UK some 8 years ago in 2013;
(3) Prior to her hospitalisation, AA resided in a property in London;
(4) AA has been registered with a GP in England since 2018. I note that prior to her collapse on 2 November 2021, AA would have been in regular communication with her GP surgery as a consequence of significant health difficulties. Her past medical history includes Type 2 diabetes (insulin dependent), Osteoporosis, Hypertension
and Reflux. She was prescribed medication and was therefore receiving treatment from her GP. She was registered here for ongoing health conditions prior to her collapse;
(5) She is currently receiving health care in England;
(6) She has family members here in the jurisdiction with whom she has contact.