JO v GO & Ors

PO, who is some 88 years of age, is the mother of four children: the applicant JO, her brothers GO and RO and her sister MP. It is common ground that PO lacks capacity to decide where to live. It is also common ground that, until the events which have given rise to this litigation, PO was habitually resident in England and Wales, living in her own home in Worcestershire with a mixture of family and other support and care, in particular support from Worcestershire County Council which had been involved since 2009. GO and RO are PO’s financial attorneys under an enduring power of attorney granted in 2004 and registered in 2010.

The facts giving rise to the litigation, initially in Scotland and now in the Court of Protection, are shortly stated. In April 2012 PO’s son, GO, moved her to Scotland, initially to his own house but quite shortly after to a care home located within the area of responsibility of Inverclyde Council. The Council became aware of PO and her circumstances early in May 2012. For various reasons which there is no need for me to rehearse, the Council applied to the Sheriff Court for a welfare guardianship order under the relevant provisions of the Adults with Incapacity (Scotland) Act 2000. 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, so that the Scottish courts had jurisdiction by virtue of paragraph 1(c) of Schedule 3 to the 2000 Act (the analogous English provision being paragraph 7(1)(c) of Schedule 3 to the Mental Capacity Act 2005). It is on that basis that the Sheriff Court accepted and has since exercised jurisdiction.

There is no need to go through the proceedings in the Sheriff Court in any great detail. The Sheriff made an interim welfare guardianship order in July 2012 appointing the Council’s chief social work officer as PO’s welfare guardian with powers in relation to her personal welfare. The full hearing of the Council’s application followed in November 2012. The Sheriff gave judgment in December 2012 confirming the interim order and extending it for three years (see section 58(4) of the 2000 Act). I need only add that at an interim hearing in November 2012 the Sheriff had dismissed an argument advanced by JO that the Scottish courts did not have jurisdiction and that there has been no attempt by JO to appeal any of the Sheriff’s orders.

JO’s application to the Court of Protection for permission to bring her application had been made earlier in November 2012. As subsequently refined what JO seeks is an order from the Court of Protection for the return of PO to England and Wales. The Council’s riposte is an application 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, PO being no longer habitually resident in England and Wales, alternatively declining to exercise any jurisdiction it may have. JO’s three siblings support the Council’s stance.

The matter came before me for directions on 20 March 2013. On 26 June 2013 Senior Judge Lush dismissed an application by JO to restrain the sale of PO’s house in Worcestershire. In accordance with the directions I had given, JO’s application and the Council’s cross-application came on for hearing before me on 30 July 2013. JO was represented by Ms Claire van Overdijk and the Council by Mr Alex Ruck Keene. GO, RO and MP were not represented (though GO and MP were present during the hearing) but each had made their position clear in written documents filed with the court. At the end of the hearing I reserved judgment. JO renewed her application for an order preventing the sale of PO’s house. I refused to make any order. Subsequently, on 15 August 2013, JO issued a further application. I shall return to this below.

A sizable volume of material has been filed relating to PO’s wishes and welfare. Given the limited ambit of the issues falling for determination at this stage I need refer to very little of it.

In the background to the issues I have to determine stands the 2000 Hague Convention on the International Protection of Adults. The Convention has been ratified by the United Kingdom in relation to Scotland alone. In England and Wales it is given effect, but only to the extent thereby specified, by certain provisions of the 2005 Act. It is therefore primarily to the 2005 Act rather than the Convention itself that I must have regard.

Section 63 of the 2005 Act (headed “International protection of adults”) 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 2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and

(b)

makes related provision as to the private international law of England and Wales.”

For present purposes 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 –

(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.”

I need 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.” It is not. Moreover, and in any event, paragraph 8, even if it was in force, would not apply in a case such as this.

PO is not present in England and Wales; she is in Scotland. Accordingly, paragraphs 7(1)(c) and (d) do not apply. PO has property in England and Wales, in particular her house in Worcestershire, so in relation to that the Court of Protection has jurisdiction under paragraph 7(1)(b). Otherwise, the Court of Protection’s jurisdiction, if any, can be based only on paragraph 7(1)(a). Hence the fundamental question: Is PO habitually resident in England Wales?

Rule 87 provides as follows:

“Procedure for disputing the court's jurisdiction

(1)

A person who wishes to –

(a)

dispute the court's jurisdiction to hear an application; or

(b)

argue that the court should not exercise its jurisdiction,

may apply to the court at any time for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction that it may have.

(2)

An application under this rule must be –

(a)

made by using the form specified in the relevant practice direction; and

(b)

supported by evidence.

(3)

An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision, including –

(a)

setting aside the application;

(b)

discharging any order made; and

(c)

staying the proceedings.”

Rule 87 is supplemented by PD 12B, but nothing turns on its provisions.

Rule 87 contemplates the existence of two conceptually quite distinct powers in the Court of Protection: one, the power to determine that it “has no jurisdiction”; the other, the power to determine that it “should not” or “will not” exercise its jurisdiction. The one involves the determination of what is essentially a question of law – does the court have jurisdiction? The other involves the exercise of a judicial discretion – accepting that the court has jurisdiction, should the court nonetheless decline to exercise it?

It is convenient to deal with the two questions in turn.

“Habitual residence” is, no doubt designedly, defined neither in the Convention nor in the 2005 Act, though there is an authoritative Explanatory Report on the Convention drawn up by Paul Lagarde dated 5 January 2000. For present purposes I need refer to only three paragraphs of the Lagarde report. In paragraph 49 he points out that:

“No definition was given of habitual residence, which despite the important legal consequences attaching to it, should remain a factual concept.”

In paragraph 50 he says:

“The change of habitual residence implies both the loss of the former habitual residence and the acquisition of a new habitual residence. It may be that a certain lapse of time exists between these two elements, but the acquisition of this new habitual residence may also be instantaneous on the simple hypothesis of a move of the adult concerned when this has occurred on a long-term if not final basis. This is then a question of fact, which it is for the authorities called upon to make a decision to assess.”

In paragraph 51 he notes that:

“The Commission did not discuss again certain questions connected with the change of habitual residence which were debated in detail during negotiations on the Convention on the Protection of Children. It thus implicitly accepted the solutions which had been arrived at there. Therefore, where the change of habitual residence of the adult from one State to another occurs at a time when the authorities of the first habitual residence are seised of a request for a measure of protection, the perpetuatio fori ought to be rejected, in the sense that the change of habitual residence ipso facto deprives the authorities of the former habitual residence of their jurisdiction and obliges them to decline its exercise.”

Helpful assistance is given by the decision of Hedley J in Re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] EWHC 1926 (Fam), [2010] COPLR Con Vol 893. The facts in that case were very different from those with which I am here concerned. For present purposes it suffices to note that the proceedings related to an elderly woman, MN, habitually resident in California, who had been removed from there to Canada and thence to this country in circumstances which, it was said, involved a breach of the terms of Part 3 of an advance directive signed by her.

Hedley J’s careful and compelling judgment repays reading in full. For immediate purposes I can confine quotation to what he said in paras 22-23:

“It follows that, in my judgment, the question of authority to remove is the key in this case to the question of habitual residence. Habitual residence is an undefined term and in English authorities it is regarded as a question of fact to be determined in the individual circumstances of the case. It is well recognised in English law that the removal of a child from one jurisdiction to another by one parent without the consent of the other is wrongful and is not effective to change habitual residence … It seems to me that the wrongful removal (in this case without authority under the directive whether because Part 3 is not engaged or the decision was not made in good faith) of an incapacitated adult should have the same consequence and should leave the courts of the country from which she was taken free to take protective measures. Thus in this case were the removal ‘wrongful’, I would hold that MN was habitually resident in California …

If, however, the removal were a proper and lawful exercise of authority under the directive, different considerations arise. The position in April 2010 was that MN had been living with her niece in England and Wales on the basis that the niece was providing her with a permanent home. There is no evidence other than that MN is content and well cared for there and indeed may lose or even have lost any clear recollection of living on her own in California. In those circumstances it seems to me most probable that MN will have become habitually resident in England and Wales and this court will be required to accept and exercise a full welfare jurisdiction under the Act pursuant to para 7(1)(a) of Sch 3. Hence my view that authority to remove is the key consideration.”

I respectfully agree.

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: see, in addition to the Lagarde report to which I have already referred, Re A [2013] UKSC 60, [2013] 3 WLR 761, paras 44, 54, 73-74.

In the case of an adult who lacks the capacity to decide where to live, habitual residence can in principle 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. Here, as in other contexts, the doctrine of necessity as explained by Lord Goff of Chieveley in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 75, applies: see the analysis in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, paras 20-21. Put shortly, what the doctrine of necessity requires is a decision taken by a relative or carer which is reasonable, arrived at in good faith and taken in the best interests of the assisted person. There is, in my judgment, nothing in the 2005 Act to displace this approach. Sections 4 and 5, after all, pre-suppose that such actions are not unlawful per se; they merely, though very importantly, elaborate what must be done and provide, if certain conditions are satisfied, a statutory defence against liability: see the important analysis of Baker J in G v E (Deputyship and Litigation Friend) [2010] EWHC 2512 (COP), [2010] COPLR Con Vol 470, especially paras 17-18, 56-57.

I have considered, in relation to the issue of habitual residence, Beatson J’s decision in R (Cornwall Council) v Secretary of State for Health [2012] EWHC 3739 (Admin), and, in relation to section 5 of the 2005 Act, the decisions both at first instance and in the Court of Appeal in The Commissioner of Police for the Metropolis v ZH [2012] EWHC 604 (QB), [2012] COPLR 588, [2013] EWCA Civ 69, [2013] COPLR 332, to all of which I was helpfully taken. They are, in my judgment, entirely consistent with the approach I have set out and none, as it seems to me, requires further consideration here.

Of course, the doctrine of necessity is not a licence to be irresponsible. It will not protect someone who is an officious busybody. And it will not apply where there is bad faith or where what is done is unreasonable or not in the best interests of the assisted person. Thus there will be no change in P’s habitual residence if, for example, the removal has been wrongful in the kind of circumstances with which Hedley J was confronted in Re MN or if, to take another example, the removal is, as in Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, in breach of a court order.

There is one final point. Counsel are agreed in submitting, and in my judgment the submission is correct, that 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 assessment. In other words, the principle of perpetuatio fori has no application in this context. Accordingly, the relevant date for determining PO’s habitual residence is the date of the hearing, July 2013, and not the date when JO made her application, November 2012.

I turn, therefore, to consider where in fact PO is habitually resident.

Mr Ruck Keene submits that, whatever may have been the position when PO first arrived in Scotland or when the Sheriff first assumed jurisdiction, PO is now habitually resident in Scotland. His case is very helpfully set out in a ‘Note on habitual residence for hearing 30 July 2013’ which I accept as containing a careful, balanced and accurate analysis of all the relevant evidence. He points in particular to a number of factors. First, he submits, this was on a proper view of the facts far from a case of adult kidnapping of the kind considered in Re HM or Re MN. I agree. Secondly, he points to the time that has elapsed since PO first arrived in Scotland. Thirdly, he points to the evidence, which I accept, that PO is settled in her care home in Scotland and, seemingly, expressing her contentment at being there. Fourthly, he points to the evidence, which again I accept, that PO is not now expressing a desire to return either to her own home or to Worcestershire.

As against this, Ms van Overdijk submits, first, that this was a case of wrongful removal and, secondly, that in any event PO is not sufficiently settled in Scotland as to be habitually resident there.

In support of her case that PO was wrongfully removed to Scotland, Ms van Overdijk submits (a) that PO’s wish at the time was to remain at home, (b) that GO, RO and MP “had no authority” to remove PO from her home and acted unilaterally, (c) that they did not seek the “involvement” of Worcestershire County Council, (d) that they did not seek the involvement of Inverclyde Council until some two weeks later, and (e) that their actions were driven in significant part by their dispute with JO.

I am prepared to assume that point (a) is correct, and points (b), (c) and (d) are no doubt factually accurate, though there is no warrant in anything I have seen for (e). But where does this take Ms van Overdijk? This was not a kidnapping. It was not some high-handed action undertaken for some ulterior motive. It was, on the contrary, something reasonably and sensibly undertaken by, or in agreement with, three of PO’s four children in what they saw as her best interests. They had authority – the authority conferred on them by the doctrine of necessity – to act as they did, and the fact that JO was of a different opinion did not rob them of that authority. Nor did they need the concurrence of or need to involve either Worcestershire County Council or Inverclyde Council: see Re A and C (Equality and Human Rights Commission Intervening) [2010] EWHC 978 (Fam), [2010] COPLR Con Vol 40, especially paras 51-53. I reject the assertion that PO was wrongfully removed to Scotland.

In relation to the second part of her submission, Ms van Overdijk points in particular to the facts that PO has been in Scotland for only some fifteen months, that her move to Scotland had originally been seen by GO as temporary, that the evidence as to PO’s current wishes and feelings is not as clear cut as Mr Ruck Keene would have me accept, and that as recently as December 2012 the Sheriff was treating PO as not habitually resident in Scotland. Accepting all of this, the fact is that PO has been in Scotland for some time and that she is settled in her care home. In all the circumstances she is not, in my judgment, habitually resident in England and Wales and I am not compelled by the Sheriff’s view to decide otherwise.

I conclude, therefore, that PO is not habitually resident in England and Wales and that accordingly I have no jurisdiction under paragraph 7(1)(a). That does not, as will be appreciated, conclude the question so far as relates to the jurisdiction I undoubtedly have under paragraph 7(1)(b). I turn therefore to the question of discretion.

There may be many reasons why, in particular cases, the Court of Protection will decline to exercise the jurisdiction it accepts it has. Rule 87 is, after all, quite general. There is no need for me to consider the wider reach of Rule 87. It suffices for present purposes to assert that there is nothing, either in Rule 87 or elsewhere, which either expressly or implicitly circumscribes the ability of the Court of Protection to apply the doctrine of forum non conveniens. On the contrary, and subject to the provisions of the Convention as and when it is ratified, Rule 87, however else it may be applied, is in my judgment quite plainly apt to enable the Court of Protection to decline to exercise jurisdiction in an appropriate case on the ground of forum non conveniens applying the principles first laid down in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. The Spiliada principles apply in cases involving children: Re S (A Minor) (Stay of Proceedings) [1993] 2 FLR 912. By parity of reasoning there can be no reason why they should not apply in cases involving incapacitated adults. In my judgment they do.

An important question arises as to whether, in determining how to exercise its discretion under Rule 87(1)(b), the Court of Protection is required to treat P’s best interests as determinative.

In the nature of things a similar question can arise in relation to a child. As is well known, there is a still unresolved controversy as to whether in this context the child’s welfare is paramount. In H v H (Minors) (Forum Conveniens) (Nos 1 and 2) [1993] 1 FLR 958, Waite J held that the child’s interests were paramount. Ward J took the contrary view in Re S (A Minor) (Stay of Proceedings) [1993] 2 FLR 912. Thorpe J in Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 took the same view as Ward J, holding (page 325) that “the welfare of the child in carrying out a Spiliada analysis is an important consideration but not a paramount consideration.” There is no need for me to come to any concluded decision on the point, though I have to say that I tend to agree with Thorpe J.

In the case of a child the point ultimately turns on whether a question of forum conveniens or forum non conveniens is, within the meaning of section 1(1)(a) of the Children Act 1989, a question with respect to the “upbringing” of the child. Here, by contrast, the governing provision is section 1(5) of the 2005 Act which provides that:

“An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.”

In Re MN, Hedley J had to consider the application of these words where the decision before him was whether to recognise in accordance with paragraph 19(1) of Schedule 3 to the 2005 Act and/or enforce in accordance with paragraph 22 of Schedule 3, an order made in relation to MN by the Californian court. He said this (para 31):

“I have concluded that a decision to recognise under para 19(1) or to enforce under para 22(2) is not a decision governed by the best interests of MN … I do not think that a decision to recognise or enforce can be properly described as a decision ‘for and on behalf of MN’. She is clearly affected by the decision but it is a decision in respect of an order and not a person.”

I respectfully agree. Precisely the same reasoning applies, in my judgment, to the question before me.

When the Court of Protection is considering a question of forum conveniens or forum non conveniens it is, fundamentally, deciding not what should be done “for and on behalf of” P; it is deciding only which court should make those decisions. It follows that the decision I have to make in this case under Rule 87 is not one which, within the meaning of section 1(5), is being made “for and on behalf of” PO. Section 1(5) accordingly does not apply.

There is no need for me to rehearse the Spiliada principles in detail. The essential inquiry is whether there is some other forum – in the present case Scotland – which is clearly the more appropriate and, if there is, whether there are nevertheless special circumstances by reason of which justice requires that the case proceeds in this jurisdiction.

Addressing the Spiliada principles, Mr Ruck Keene submits that Scotland is clearly the more appropriate forum and that there are no special circumstances pointing in favour of England. He summarises his key submissions as follows. First, as he points out, questions relating to PO’s welfare, including most significantly the question of where she should live, have been before the Sheriff Court for some time and that court continues to exercise jurisdiction and, moreover, in an entirely appropriate manner. It cannot, he suggests, be in PO’s best interests for matters in dispute to be litigated in the courts of two different countries, not least bearing in mind the additional costs that will be incurred, some at her expense. Secondly, there is no English public authority which currently considers it has responsibility for PO’s welfare, whereas for the time being, and indeed so long as she remains in Scotland, the Council has that responsibility. Thirdly, most of the witnesses whose evidence would be relevant to the issues JO seeks to ventilate are in Scotland. Mr Ruck Keene acknowledges that it would be more convenient for JO to attend court in England but submits that it would be to the same extent more convenient for GO to attend court in Scotland. Fourthly, and in sum, all the matters in dispute have the most real and substantial connection with Scotland and there are no special circumstances requiring that the Court of Protection should nevertheless accept jurisdiction.

Ms van Overdijk, in response, points to the fact that the Sheriff has hitherto been exercising jurisdiction on the basis of PO’s presence, and urgency, rather than habitual residence. She submits that it is unrealistic to imagine litigation in both courts, that this court is better placed than the Sheriff Court to examine and determine the issue of wrongful removal, and that if PO is in fact returned to England this court will likewise be better placed to monitor the arrangements.

I accept Ms van Overdijk’s submission as to the likely unreality of litigation proceeding in both courts, but otherwise accept Mr Ruck Keene’s analysis. There is no longer any need to determine the issue of wrongful removal and all the other issues are, as Mr Ruck Keene submits, plainly better suited to decision by the Sheriff Court, being the court of the country where PO is living and where most of the relevant witnesses are. Moreover, in the event of the Sheriff Court deciding that PO should return to England, appropriate steps, including the involvement of the Court of Protection, can, no doubt, be taken at that stage to ensure that the arrangements put in place for PO are properly monitored. Scotland is the forum conveniens and there are no special circumstances requiring the Court of Protection nonetheless to assume jurisdiction.

I conclude therefore that I should decline to exercise jurisdiction under paragraph 7(1)(b).

For these reasons I shall, as to all matters other than those relating to PO’s English property, make an order pursuant to Rule 87(1)(a) and as to so much of the application as relates to that property, an order pursuant to Rule 87(1)(b). I shall set aside JO’s original application.

Following the hearing, JO made a further application relating to the question of what should be done either to sell or retain PO’s house in Worcestershire. That is an application which I have jurisdiction to consider, whether or not PO is habitually resident in England and Wales, by virtue of paragraph 7(1)(b). However, for the reasons I have already explained, this is matter best determined by the Sheriff Court, being inextricably linked with the broader issues relating to PO’s future and personal welfare.

GO has helpfully raised the question of the form in which this judgment should appear. It is clear to me that the judgment should be delivered in public, in open court. That is indicated not just by what in my view is the pressing need for the Court of Protection to operate and be seen to operate in an open and transparent fashion but also because, as it happens, the judgment deals with certain questions of law of general importance. On the other hand, it is in my judgment equally clear that the judgment should be published, as GO seeks, in an anonymised form which respects his mother’s (PO’s) privacy and dignity. It is for that reason that neither PO nor her children have been identified, whether by name or otherwise, and that I have been deliberately sparing in the details I have given of matters which should remain private to PO and her family.