Must an adult who is the subject of an application under Schedule 3 to the Mental Capacity Act 2005 to recognise and enforce an order of a foreign court that deprives the adult of his or her liberty be joined as a party to the application?

That question, which was not considered by this court in the recent judgment in The Health Service Executive of Ireland v PA and Others [2015] EWCOP 38, arises in these proceedings in which the Health Service Executive of Ireland (“the HSE”) has sought an order for the recognition and enforcement of an order made by the High Court of Ireland in respect of a 21-year-old woman (hereafter referred to as “PD”) with a diagnosis of severe anorexia nervosa. At the conclusion of a hearing on 19^th June 2015, (at which PD was neither a party nor represented), I made an order in line with the application and, as a result, PD has moved from a hospital in Ireland to a specialist unit in this country. I was satisfied that the circumstances, in particular PD’s urgent need for specialist treatment, justified such an order. But, having regard to two significant developments in the law around the time of the hearing – namely, the decision of the Court of Appeal in Re X (Court of Protection Practice) [2015] EWCA Civ 599 on 16^th June 2015 and the coming into force on 1^st July 2015 of amended Court of Protection Rules, in particular the new rule 3A – I listed the matter for review on 1^st July. The Official Solicitor accepted my invitation to act as advocate to the court and instructed Mr David Rees to appear on his behalf, as he had done in the earlier PA case, alongside Mr Henry Setright QC and Mr Alex Ruck Keene, who appeared for the HSE, as indeed they had in the earlier case.

The background to this case can be summarised as follows. PD was transferred to an eating disorder programme at a hospital in Ireland in June 2014 and subsequently admitted as an involuntary patient under the Irish Mental Health Act 2001 on 9^th October 2014. On 10^th November 2014, the HSE, as the statutory body in Ireland responsible for securing her welfare, made an urgent application to the Irish High Court for an order to permit the force feeding of PD, in addition to various ancillary orders. Since that date, she has been the subject of a number of court orders which have permitted the HSE to use reasonable force to enable her to undergo force-feeding and/or life saving treatment as an in-patient, including PEG feeding and naso-gastric tube feeding. In those proceedings, she has been represented by her father as her guardian ad litem, the Irish High Court having found that she lacked the capacity to conduct the proceedings. The Irish order was discharged for a short period in January 2015 but then reinstated until a date in April 2015 when PD was placed under a comprehensive after-care plan. Unfortunately, towards the end of that month, her condition deteriorated again and she was readmitted voluntarily to the same hospital unit in Ireland. On 13^th May, she was discharged from the unit again but a week later committed an act of self-harm and was readmitted to hospital for treatment. Due to a combination of her physical health and anorexic symptoms upon admission, she did not accept the necessary treatment and tried to leave the unit. In addition, she was expressing suicidal thoughts and was considered by her treating team to have lost capacity to make decisions as regard medical treatment and the intake of food. She was therefore re-certified under the 2001 Act and placed on one-to-one special nursing. On 27^th May 2015, the earlier orders of the Irish High Court were reinstated.

The HSE then identified a placement for PD in a specialist unit in England and a bed was made available for her with effect from 24^th June. Her treating team in Ireland concluded that she had undergone all the treatment options available in that country and that the placement at the unit in this country would provide her with one last opportunity to get the necessary medical and clinical care she so urgently requires. On 16^th June 2015, an order was made by the President of Irish High Court providing for the compulsory admission for treatment of PD to the unit in England on a time-limited basis and subject to the continuing oversight of the Irish High Court. The parties to the Irish proceedings, including PD’s father acting as guardian ad litem, agreed, with the endorsement of the Irish High Court, that the HSE should take urgent steps to seek recognition and enforcement of the relevant measures contained in the order of 16^th June so as to secure authority in this country for the placement and treatment of PD at the unit, protection for her rights under ECHR whilst admitted and treated there, and recognition of the continued jurisdiction of the Irish High Court over the person of PD whilst she is physically present in this country. The application was particularly urgent because, as described in detail in medical reports put before the Irish High Court and before this court, the treatment options for PD in Ireland had been exhausted and it was essential that she be admitted to the unit in England as quickly as possible. In view of the urgency, the HSE submitted that the order be made on the basis that PD would not at this stage be made a party to the proceedings, but acknowledging that, in the event that PD indicated that she wished to challenge any aspect of the order, the HSE would take steps to ensure that the matter returned to the Court of Protection forthwith for further directions. The HSE submitted that, in light of the urgency of the matter and the fact that PD had been represented in the Irish proceedings by her guardian ad litem, even if the court did wish to consider questions of her party status, that should not operate as a bar to the immediate recognition and enforcement of the order at the hearing listed before this court on 19^th June.

At that hearing, I made an order (in terms that closely followed the orders made in the PA case) including a declaration, pursuant to Schedule 3, that the protective measures of the Irish High Court contained in its order dated 16^th June should be recognised and enforceable in this jurisdiction. I joined the Trust responsible for the unit in this country as respondent, but excused them from attending any hearing unless so advised. The order recited that the court had concluded, after an evaluation of the information presented, that it was satisfied that the deprivation of PD’s liberty had been subject to sufficient scrutiny and effective procedural safeguards before the Irish High Court (and on a preliminary basis before this court) to obviate the need for PD to be joined as a party for the purposes of making an urgent order, but that the matter of her participation (including the question whether she was required to be a party) should be considered at a further hearing listed for 1^st July. As indicated above, the Official Solicitor was invited to attend the hearing (and I later clarified that his attendance was intended to be as advocate to the court). In addition, PD’s father was also invited to attend the hearing.

On 23^rd June, the Irish High Court made a further order providing for the transfer of PD from the specialist unit to a local general hospital in this country should her health so require, and providing (under paragraph 5 of the order) that the general hospital was permitted to rely on the authority granted by the Irish orders in facilitating such care as is deemed necessary and in her interests. Under paragraph (B) of the order, the Irish High Court added: “for the avoidance of doubt and save in the event that the provision of such is necessary immediately to save [PD]’s life, paragraph 5 does not stand as authority to the [general hospital] either to carry out or withhold treatment constituting serious medical treatment (as defined in Practice Direction 9E to the Court of Protection Rules 2007) such authority must be sought by the Plaintiff from this Honourable Court [i.e. the Irish Court].” On the same day, I made a further order on the papers (without any representations from PD) declaring that this supplemental order be recognised and enforceable.

In the PA case, I considered the provisions of Schedule 3 to the MCA in some detail. It is unnecessary to traverse the same ground again. The salient features relevant to this case are as follows.

S.63 of the Act provides:

Under the heading “Recognition”, paragraph 19 provides inter alia:

the case in which the measure was taken was not urgent,

the adult was not given an opportunity to be heard, and

The omission amounted to a breach of natural justice.

It may also disapply this paragraph in relation to a measure if it thinks that

recognition of the measure would be manifestly contrary to public policy

The measure would be inconsistent with a mandatory provision of the law of England and Wales, or

The measure is inconsistent with one subsequently taken, or recognised, in England and Wales in relation to the adult.”

On the interpretation of paragraph 19(3), I said (at paragraph 55):

On the facts of the three cases then before me, (in which all three adults had been represented before the Irish court by a guardian ad litem and counsel), I concluded there were no grounds on which it could possibly be said that any of the three individuals was not given a full and proper opportunity to be heard in the Irish proceedings. In addition, all three adults in the PA case were party to the recognition and enforcement application and two of them were represented by counsel before me (funded by the HSE.) At paragraph 59, I noted:

In addressing the question whether an adult who is the subject of an application to recognise and enforce an order of a foreign court under schedule 3 should be joined as a party, I must consider the two legal developments alluded to above, namely the “decision” of the Court of Appeal in Re X and the introduction of the new COP Rule 3A.

At first instance in Re X, the President of the Court of Protection gave two judgments on the practice and procedure to be adopted in applications to the Court in cases of deprivation of liberty, following the decision of the Supreme Court in Cheshire West and Chester and Council v P and another; Surrey County Council v P and Others [2014] UKSC 19. In particular, he gave answers to twenty-five questions formulated with the assistance of counsel. Some of the parties to that hearing sought permission to appeal against some of his answers. In the event, the Court of Appeal only considered one of those issues, namely whether the person who may be deprived of his liberty (“P”) must always be joined as a party, which the President had answered in the negative.

Before considering what the Court of Appeal said regarding that issue, it is important to note that the Court concluded that the President had no jurisdiction to determine the issues upon which the appellants were appealing and, accordingly, the Court of Appeal had no jurisdiction to entertain the appeals. It could then be argued that the observations of the judges of the Court were (at best) obiter dicta or (possibly) merely dicta. It would, however, be extremely unwise for any judge at first instance to ignore what was said by the Court of Appeal. On the contrary, I consider that I must treat the dicta as the strongest possible indication of how the Court of Appeal would rule on the question before it, in the event that the issue returns to that Court as part of a legitimate appellate process.

Before looking at the dicta, it is important to remind oneself of the context. The issue with which the President had been grappling was how to deal with the anticipated plethora of cases following the Cheshire West decision in which the court hears an application under section 21A of the MCA to review an authorisation of a deprivation of liberty under Schedule A1 or, in cases falling outside that Schedule, on an application to the court for an order under section 16(2)(a). Applications for recognition and enforcement of foreign orders under Schedule 3 are not mentioned in the judgment and I was informed by Mr Ruck Keene, who appeared in the Court of Appeal in Re X, that it was not discussed in the hearing.

In her judgment, Black LJ observed (at paragraph 86):

At paragraph 87, Black LJ quoted the well-known passage from the decision of the ECtHR in Winterwerp v Netherlands (1979) 2 EHRR 387 at paragraph 60:

Black LJ stated (at paragraph 96) that she could

To those comments, the other judges in the Court of Appeal (Gloster and Moore-Bick LJJ) each observed (at paragraphs 127 and 171 respectively) that a procedure under which P

The second recent development has been the coming into force on 1^st July 2015 of the new Rule 3A of the Court of Protection Rules 2007, together with an associated Practice Direction 2A. The new rule provides inter alia as follows:

PD 2A explains the purpose behind the introduction of Rule 3A as follows:

On behalf of the HSE, Mr Setright and Mr Ruck Keene submit that joinder of PD as a party is neither compulsory nor necessary on the facts of this case. They point out that, unlike in Re X, the Court here is not concerned with an application for an order under section 16(2)(a), or under section 21A, but rather for the recognition of an order authorising the deprivation of liberty in a process in Ireland in which PD was given a full opportunity to participate. Within the compass of the “limited review” identified as being necessary by this court in the PA case to ensure compliance with the Court’s obligations under the Human Rights Act 1998 and ECHR, the concerns expressed by Black LJ could and should lead to a clear focus on the matters already identified as relevant by paragraph 19(3) of Schedule 3, that is to say whether the adult concerned was given the opportunity to be heard and, if not, whether that omission amounted to a breach of natural justice. Further or alternatively, they point out that the new rule 3A requires the Court in each case to decide how P is to participate in the proceedings. As an example of how such a scheme might work, they point to the recent decision of Mostyn J in Bournemouth BC v PS and DS [2015] EWCOP 39, in which the learned judge discharged P as a party having been wholly satisfied that his voice had been fully heard on the question of deprivation of liberty through his independent mental capacity advocate.

By way of further analogy, Mr Setright and Mr Ruck Keene also refer to the Hague Child Protection Convention 1996 and the Council Regulation (EC) 2201/2003, commonly known as Brussels II Revised. Under these instruments, children are not automatically parties to applications for recognition and enforcement of foreign orders brought under Family Procedure Rules 2010 Part 31. Indeed, FPR 31.8(2)(b) specifically provides that, where the application is for registration of a foreign judgment (either under the 1996 Convention or Brussels II Revised), the court will not accept submissions from any child in relation to whom the judgment was given. Mr Setright and Mr Ruck Keene do not argue that there is a similar bar to any adult who is the subject of a protective measure being considered under Schedule 3 of the 2005 Act making submissions or being made a party to applications brought under the Schedule, but rely on these instruments in support of their proposition that joinder of the subject of a foreign order is not an essential prerequisite on an application for its recognition and enforcement.

On behalf of the Official Solicitor, Mr Rees submits that, as of 1^st July 2015, the Court is under a duty under Rule 3A to consider making one of the Rule 3A(2) directions to ensure that P’s “voice” is properly before the court. Mr Rees submits that, notwithstanding the description by Hedley J in Re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] EWHC 1926 (Fam) of applications under Schedule 3 as being “summary and mandatory” (paragraph 28), the questions arising under such application (as analysed by this Court in the PA decision), are in fact more substantial and provide a context within which the court must consider what it needs to do to ensure that the adult’s voice is properly heard.

Mr Rees acknowledges that the Court of Appeal in Re X was only considering applications brought under the original jurisdiction of the Court of Protection and that an order recognising and enforcing a foreign order is not a welfare order as defined by section 16A(4)(b). He submits, however, that recognition and enforcement of the Irish order depriving PD of her liberty cannot proceed without the authorisation of this Court and that the issue of how ECHR rights are to be respected is a matter of substance and not form. In oral submissions, Mr Rees observed that, although the substantive decision depriving PD of her liberty was one of the Irish court, the authorisation for the deprivation of liberty in this country derives from this court’s order for recognition and enforcement and, without such authorisation, the Irish order is “nothing but a piece of paper”. Although the review to be conducted by this court is necessarily limited as explained in the PA decision, it is necessary to ensure that this country’s own obligations under Articles 5, 6 and 8 of ECHR are met and that an appropriate process for securing PD’s participation in the Schedule 3 proceedings needs to be adopted. Manifestly, this can be achieved by joining her as a party to the proceedings. Mr Rees accepted that an alternative course might be to make some other order within Rule 3A (2). In his submission, however, it is difficult to see how her participation in the proceedings could be adequately secured if the Court were to proceed without making any direction under Rule 3A at all.

In oral submissions, Mr Rees further contended that a direction short of joinder as a party could fall foul of the difficulties identified by Black LJ in Re X at paragraph 100. Unless the adult concerned in the proceedings is joined as a party, or another course under rule 3A(2) is adopted, the Court will be depending “entirely on the reliability and completeness of the information transmitted to the court by those charged with the task”, who will usually, as in this case, be the very persons who have sought to deprive the adult of her liberty in the court of origin. Mr Rees therefore concludes that care should be taken to ensure that a genuine opportunity is given to any adults such as PD for his or her voice to be heard when the Court considers the questions required to be scrutinised by an application under Schedule 3.

Mr Rees goes on to make some specific submissions relating to the present case. First, he draws attention to the provision in clause (B) of the supplemental order of the Irish court dated 23^rd June 2015 (quoted at paragraph 6 above). Mr Rees points out that, under Schedule 3 paragraph 7(1)(c), the Court of Protection is able to exercise its “full, original jurisdiction” in relation to an adult present in this country if the matter is urgent. He submits that clause (B) of the Irish order of 23^rd June purports to oust the coordinate jurisdiction of the Court of Protection in this regard and raises the possibility that such an attempted ouster could be seen as manifestly contrary to public policy and therefore opens the door to the court refusing recognition under schedule 3 paragraph 19(4). Mr Setright and Mr Ruck Keene respond that this is intended as protection for PD and clarifies that a treating general hospital may not seek to carry out serious medical treatment upon her without further authority being sought by the HSE from the Irish High Court. Were such authority to be sought and granted, the next step would be an application for recognition and enforcement in this country for purposes of implementing the measure here. They submit therefore that it does not offend against any principle of public policy. I agree with their submission on this issue.

Secondly, Mr Rees identifies a concern as to the extent to which PD’s father is able to represent her in an even-handed and balanced way in the Irish proceedings, given that he was instrumental in bringing about her hospitalisation and ultimate transfer to the specialist unit in this country. He submits that there are grounds for believing that PD’s ability to challenge her detention in Ireland is limited with no clear mechanism to ensure that her own views, as opposed to those of her father, are placed before the Irish court. In effect, therefore, he invites the Court to review its decision not to refuse recognition under Schedule 3 paragraph 19(3). In response, Mr Setright and Mr Ruck Keene submit that, were the court to accept without question the submissions by the Official Solicitor as to the ability of PD’s father to represent his daughter before the Irish court, it would essentially be concluding that the Irish proceedings were a sham. This would, they submit, be a very profound step to take. They accept, however, that it is the ongoing responsibility of the court considering an application under Schedule 3 to consider as required by paragraph 19(3) whether the adult was given an opportunity to be heard, and, if not, whether that omission amounted to a breach of natural justice. In this context, Mr Setright very properly drew attention to a transcript of the hearing before the Irish High Court on 10^th November 2014 which led to the appointment of PD’s father as guardian ad litem. Mr Setright pointed out that, up to that point, the HSE had been proposing the instruction of a professional guardian.

Thirdly, Mr Rees submits that PD appears to have fluctuating capacity and that in those circumstances the wide terms of the Irish orders, which promote the indefinite imposition of medical treatment and the use of force and restraint, may go beyond what is permissible when the only apparent trigger for a review of the Irish orders is if PD no longer meets the criteria for detention under the Irish Mental Health Act. In reply, Mr Setright and Mr Ruck Keene submitted that Mr Rees’s observation as to the open-ended nature of the deprivation of liberty do not take into account either the regularity of the reviews that have in fact taken place before the Irish Court or the requirement specifically referred to in the Irish order of 16^th June 2015 for the HSE to obtain regular updates from the specialist unit in this country to be provided to the Irish court.

Finally, Mr Rees submits that, in the absence of specific rules governing applications for recognition and enforcement under Schedule 3, the court may wish to consider the extent to which it is appropriate for such applications to be disposed of on a “without notice” basis. In the present case, this court made an order which essentially recognised and enforced the Irish order but then listed it for review. Mr Rees submits that a better approach (which was in fact adopted in two of the cases in PA) would be if an initial inter partes hearing is impracticable for any recognition and enforcement to be for a limited period of time. On this point, Mr Setright and Mr Ruck Keene submit that each case will turn on its own facts and require a different approach depending on the circumstances. In some cases, faced with a without notice application for recognition, the court will refuse relief. In other cases, the court may be persuaded at a without notice hearing that the urgent circumstances require an interim form of relief to be granted but then identify matters to be reconsidered or investigated further at a further hearing. Such a course of action provides urgent short term relief but requires at the same time a further hearing to ensure that the provisions of Schedule 3 are satisfied. In a third category of case, the court may be satisfied, on the information before it, that it is appropriate to make an indefinite order for the recognition and enforcement of the protective measure without any further hearing. In this case, Mr Setright and Mr Ruck Keene submit that, if the court feels on reflection, having regard to the more detailed information now available as to the proceedings in the Irish court, that a further review is required, it would be appropriate for this court to give directions requiring the HSE to revert to the Irish court, identifying those areas in respect of which it would require further assistance in order to extend the recognition and enforcement of the order in this country.

In Re X, the judges of the Court of Appeal were considering proceedings for orders authorising in the deprivation of liberty by the Court of Protection exercising its original jurisdiction under the MCA 2005. They were not asked to consider applications for the recognition and enforcement of foreign orders under Schedule 3. Their clear statements of principle, however, serve as a strong reminder of the importance to be attached to ensuring that P’s voice is heard on any application where deprivation of liberty is in issue.

In fact, this lies at the heart of the process of recognition and enforcement provided in Schedule 3. As set out above, paragraph 19(3) requires the court to consider whether the adult was given an opportunity to be heard before the court of origin and, if not, whether that omission amounted to a breach of natural justice. Save in cases of urgency, this gives the Court power to refuse recognition of orders if it considers that such a breach of natural justice has occurred. If, however, the adult has been given such an opportunity, the Winterwerp criteria as reiterated by the ECtHR on many occasions, most recently in M.S v Croatia (2), supra, will have been satisfied.

When carrying out its limited review of the process before the foreign court, this court must therefore bear in mind the observation of Black LJ at paragraph 86 that “it is generally considered indispensable in this country for the person’s whose liberty is at stake automatically to be a party to the proceedings in which the issue is to be decided.” To my mind, however, where the adult has been a party and represented in the proceedings before the foreign court, it is not “indispensable” for that adult also to be a party before this court on an application for recognition and enforcement of the foreign order, given the limited scope of the enquiry required of this court when considering an application under Schedule 3.

Each case will turn on its own facts. In some cases, the court will conclude that the adult needs to be joined as a party immediately. In other cases, the court will adopt one or other of the alternative methods provided in Rule 3(A)(2). In a third category of case, the court will be satisfied on the information before it that the requirements of Schedule 3 are satisfied without taking any of the measures provided by Rule 3A(2)(a)-(d). In very urgent cases, the court may conclude that an interim order should be made without any representation by or on behalf of the adult, but direct that the question of representation should be reviewed at a later hearing. Such a course seems to me to be consistent with the analysis of Black LJ at paragraph 104 of Re X. In every case, however, when carrying out that analysis, the court must be alive to the danger identified by Black LJ, at paragraph 100 in Re X that the process may depend “entirely on the reliability and completeness of the information transmitted to the court by those charged with the task” who may “be the very person/organisation seeking authorisation for P to be deprived of his liberty”.

In some cases, joinder of the adult as a party will be considered necessary, but I anticipate that in the majority of cases it will not. The flexibility provided by the new Rule 3A seems to me to be well suited to applications under Schedule 3. In particular, I can envisage cases in which the appointment of an accredited legal representative will be appropriate, since such an appointment will facilitate a quick but focussed analysis of the particular requirements of Schedule 3. It is therefore to be hoped that the scheme for accreditation is swiftly established. Pending the introduction of such a scheme, the court will have to consider in each case what other steps provided by Rule 3A should taken.

This is an area where the principles of comity and co-operation between courts of different countries are of particular importance in the interests of the individual concerned. The court asked to recognise a foreign order should work with the grain of that order, rather than raise procedural hurdles which may delay or impede the implementation of the order in a way that may cause harm to the interests of the individual. If the court to which the application for recognition is made has concerns as to whether the adult was properly heard before the court of origin, it should as a first step raise those concerns promptly with the court of origin, rather than simply refuse recognition.

The purpose of Schedule 3 is to facilitate the recognition and enforcement of protective measures for the benefit of vulnerable adults. The court to which such an application is made must ensure that the limited review required by Schedule 3 goes no further than the terms of the Schedule require and, in particular, does not trespass into the reconsideration of the merits of the order which are entirely a matter for the court of origin. As I said in paragraph 95 of the judgment in PA,

I turn to the facts of the present case. At the time of the hearing before me on 19^th June 2015, I was satisfied, applying Schedule 3 paragraph 19, that the protective measures should be recognised. I have now had an opportunity to consider the transcript of the hearing in November 2014 at which PD’s father was appointed guardian ad litem and with that in mind have looked at the evidence of PD’s wishes and feelings which were before the Irish court. That evidence comprised, so far as I can see, principally her comments as recorded in the reports of the treating doctors. Now that the urgency of her circumstances has lessened and PD has been admitted to the unit in this country, I consider that I should ask the Irish court for clarification as to how PD was given, and is currently being given, an opportunity to be heard on the issue of her deprivation of liberty. I make this request to facilitate the limited scrutiny required by Schedule 3. I shall therefore adjourn this matter to a date to be fixed in the week of 27^th July for a further hearing with a time estimate of 1 hour. I ask the HSE urgently to draw my comments to the attention of the Irish High Court.

So far as PD’s position at the next hearing is concerned, applying the new Rule 3A, I consider that, having invited the Official Solicitor to act as advocate to the court at the hearing on 1st and 3rd July, PD’s interests and position can properly be secured by inviting him to continue in that role at the next hearing. In the circumstances of this case, I consider that this course lies within the scope of the flexible provisions of Rule 3A(2), in particular paragraph (e). Whether or not further steps are necessary to secure P’s interests and position at or after that hearing will depend in part on the further information presented to the court. I do not rule out taking one or other of the steps provided for in Rule 3A(2) at that stage. But for reasons set out above, I believe the better course, having regard to the principles of comity and cooperation lies initially with seeking clarification from the Irish High Court as proposed.

I do, however, accept Mr Rees’s criticism of the open-ended order for recognition and enforcement made on 19^th June, and shall therefore amend paragraphs 1 to 4 of that order, and the order of 23^rd June, so as to provide that the protective measures in the Irish Court’s order shall be recognised and enforceable up to and including 29^th July 2015 but with liberty to the HSE to apply for an extension of the order should the circumstances justify such an extension. All applications are reserved to me if available.

I would be grateful if counsel would as a matter of urgency consider the terms of an order giving effect to this amendment, and submit a draft as soon as possible.