DB, Re

DB and EC are two men born and raised in Scotland. Each has a profound learning disability and complex behavioural problems. They have both been receiving treatment in the same specialist hospital in England for several years. Proceedings in respect of each man have now been started in the Court of Protection. A preliminary issue has arisen as to whether each man has acquired habitual residence in England so as to vest jurisdiction in the Court.

DB was born in Scotland on 7 August 1987. He has a severe learning disability and autism. He has difficulties in processing information and very limited communication. He is incapable of organising his day-to-day activities without support and supervision. He has very limited social skills and requires care, guidance, structure and routine on a daily basis. He has a long history of highly aggressive behaviour with no apparent triggers which has led to repeated incidents in which he has caused harm to himself, to others and damage to property. He also suffers from epilepsy for which he takes regular medication. One of the social workers who has responsibility for his case describes his needs as being multi-layered and of a complexity only seen in a very small percentage of people with a learning disability.

On 13 September 2001, aged just 14, DB was made subject to a detention order in Scotland under the Mental Health (Scotland) Act 1984. Following legislative changes, he was subsequently made the subject of a compulsory treatment order under the Mental Health (Care and Treatment) (Scotland) Act 2003. He was detained in a series of residential units but the complexity of his case presented very considerable challenges to the team of professionals responsible for his care. At one point, his behavioural problems were of such intensity that the recommended staff ratio for his care was 4:1.

On 26 August 2008, DB was transferred, pursuant to powers under a statutory instrument governing cross-border transfers of patients subject to detention requirements, to a hospital unit in England specialising in the care of young people with a learning disability and autism, hereafter referred to as "X-Hospital”. His placement at the hospital was funded jointly by Renfrewshire Council and NHS Greater Glasgow and Clyde, the two agencies in Scotland responsible for his care and treatment, at a total cost of £296,000 per annum. On admissiiion to X Hospital, he was detained pursuant to section 3 of the Mental Health Act 1983.

According to the Renfrewshire Council social worker responsible for his case, over the next five years there was a steady improvement in his behaviour. The staff ratio was reduced to 2:1 or 1:1. He received a high standard of care from a team of workers who have come to know him very well. The social worker comments that the staff have developed the ability to pick up when he is likely to have a seizure or when he is showing anxiety. As a result of his improved presentation, it was concluded that he no longer needed such a restrictive regime. In October 2013, his detention under the 1983 Act was therefore revoked.

At that point, X Hospital granted an urgent authorisation under Schedule A1 to the Mental Capacity Act 2005 (“MCA”). A request for a standard authorisation was made to the English local authority as supervisory body for the area where X Hospital is situated, but the best interests assessor concluded that he was not being deprived of his liberty and thus the request was refused. Following the decision of the Supreme Court in the Cheshire West case [2014] UKSC 19, however, a standard authorisation was granted on 10 April 2014 for a period of six months, and on 26 November 2014 a further standard authorisation was granted for a period of 12 months.

Discussions and investigations that took place involving X Hospital and the two Scottish agencies to identify an alternative placement for DB. His father was also involved in these discussions, although he has at times been strongly critical of the actions of some of the professionals and agencies involved in his son’s care. It is unnecessary for the purposes of this judgment to set out these matters in any detail. By August 2015, a placement had been identified by the Scottish agencies in a hospital unit in Scotland run by the same agency as is responsible for X Hospital. It remains the intention of the Scottish agencies to place DB in a unit in Scotland as soon as possible, although the initial proposal has now been abandoned following challenges raised by DB’s father.

On 19 August 2015, an application was made on DB's behalf by his Independent Mental Capacity Advocate under section 21A of the MCA seeking to set aside the standard authorisation. Initial directions were given on the following day by District Judge Batten, including an invitation to the Official Solicitor to act as DB’s litigation friend, directions for service on the English local authority, Renfrewshire Council, X Hospital, and DB’s father as respondents to the application, and for transfer of the proceedings to the appropriate Court of Protection regional hub centre. On 8 September 2015, His Honour Judge Plunkett appointed the Official Solicitor as litigation friend, he having accepted the invitation but reserving his position as to the jurisdiction of this Court to determine the application. The judge made further directions for disclosure and the filing of evidence. On 24 October 2015, a further standard authorisation was granted for a period of six months. The matter came back before Judge Plunkett on 28^th October, when the order made recorded that the issue of jurisdiction had yet to be determined, and included further directions to Renfrewshire Council to file evidence in support of its position concerning DB’s habitual residence and also disclosure of its long-term plans for his care and residence in the event that he was returned to Scotland.

On 15 December 2015, the company running X Hospital wrote to Renfrewshire Council stating that they were serving notice “on DB’s placement” and fixing a date for his discharge from the hospital on 13 June 2016.

The matter was listed for further directions in February 2016, but in the event, that hearing was vacated when the local authority and court identified issues in common with the second case involving EC.

EC was born in Scotland on 21 September 1984. He has a diagnosis of severe learning disability, cyclic mood disorder, and autistic spectrum disorder with associated challenging behaviours. He has a history of serious violent and abnormally aggressive and self-injurious behaviour, including “charging” behaviour during which he runs at speed towards other people. His inability to communicate with those around him causes him difficulty in making sense of things.

On 17 February 2005, aged 21, EC was made subject to a detention order in Scotland under the Mental Health (Scotland) Act 1984. Following changes in the legislation, he too was made the subject of a compulsory treatment order under the Mental Health (Care and Treatment) (Scotland) Act 2003. Like DB, he was detained in a series of residential units but, as in DB’s case, the complexity of his problems presented very considerable challenges to the team of professionals responsible for his care. On 3 June 2010, EC was transferred to X Hospital under the same statutory instrument powers as DB. Thereafter, he was treated as if detained under section 3 of the 1983 Act. The placement was managed by his Scottish local authority, North Ayrshire Council, but wholly funded by the relevant NHS body in Scotland.

During his time at X Hospital, EC’s behaviours abated significantly. It was therefore concluded that he no longer met the requirements for detention under the 1983 Act, although he continues to display very complex and challenging behaviours from time to time that require him to be under continuous supervision and control of support staff. His detention under the 1983 Act ended on 14 August 2015. The following day, X Hospital applied to the English local authority, Worcestershire County Council, for a standard authorisation under Schedule A1 of the MCA. A six-month authorisation was granted on 25 September 2015. On 3 December 2015, his relevant person’s representative filed an application under section 21A of the MCA. Initial directions were given on 15 December, including an invitation to the Official Solicitor to act as EC’s litigation friend, and the filing of further evidence by the local authority. The Official Solicitor accepted the invitation and, at the next hearing before Judge Plunkett, North Ayrshire Council, Worcestershire County Council and X Hospital were joined as respondents. By that point, however, the common issue of jurisdiction arising in the two cases had been identified and Judge Plunkett made an order consolidating the two proceedings "in respect of the jurisdictional and legal issues only which are relevant to both cases" and ordered that a directions hearing in respect of those issues be listed before the President or a Tier 3 judge. He made further directions for the determination of the substantive issues at a subsequent hearing before him. In EC’s case, there remains uncertainty as to his future placement. It is the position of North Ayrshire Council that he should remain at Hospital for the foreseeable future.

Schedule 3 paragraph 7(1) to the MCA provides

“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.”

The equivalent Scottish legislation contains a provision which is almost identical: see Adults with Incapacity (Scotland) Act 2000, Schedule 3 para 1.

It is accepted that this Court has jurisdiction under section 21A to determine a challenge to a standard authorisation made under Schedule A1 to the MCA irrespective of whether or not the subject of the proceedings is habitually resident in England and Wales. Nonetheless, in order for a court to make decisions concerning the care and residence of the individual under its powers under sections 15 and 16 of the MCA, it must be established that the adult is habitually resident in this jurisdiction.

In An English Authority v SW and others [2014] EWCOP 43, Moylan J concluded that the definition of “habitual residence” under the MCA is the same as the definition applied in family law statutes and instruments, in particular under Council Regulation (EC) 2201/2003 ("Brussels IIA") which is the pre-eminent instrument defining the jurisdictional rules for cases involving children. The reason for adopting the same approach is principally because Schedule 3 of the MCA is based substantially on the Hague Convention on the International Protection of Adults 2000 (although the United Kingdom has only ratified that convention in respect of Scotland) which in turn is closely aligned to the language in international instruments concerning children, including Brussels IIA.

Amongst the "numerous factors" which, in cases involving children, are likely to be relevant are the factors identified by the CJEU in Proceedings brought by A, supra, at paragraph 38-9:

“38.

In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.

39.

In particular, the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration.”

In Mercredi v Chafe, supra, at paragraph 51, the CJEU further observed that:

“… In order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the regulation does not lay down any minimum duration.”

In the Supreme Court in Re LC, supra, at para 59, Baroness Hale summarised the question to be asked as follows:

“has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual?”

In the SW case, Moylan J concluded (at paragraphs 68 and 72):

“68.

Although the Supreme Court refers, in both A v A and Re LC, to the test or question as being whether there is some or sufficient degree of integration in a social and family environment, I do not accept that this was intended to narrow the court’s focus to this issue alone as an issue of fact. It is not a free-standing, determinative factor, and in particular not to the exclusion of all other factors. In my view, this would not be consistent with the broad assessment identified as being necessary by the CJEU. As the Court said, in Proceedings brought by A, the national court must conduct an “overall assessment” in the light of the factors referred to in paragraphs 38 to 41.

….

72.

I would suggest that the phrase “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. Otherwise, it would become a legal construct in place of the essential issue which is, of course, that of habitual residence. This is not to say that the degree of integration and a person’s state of mind are not relevant; they are clearly factors to which appropriate weight must be given when the court is undertaking a broad assessment of all the circumstances of the case. The broad assessment which is required properly to determine whether the quality of residence is such that it has become habitual in that it has the necessary degree of stability in order to distinguish it from mere presence or temporary or intermittent residence. This means a sufficient, or some, degree of integration, not, I suggest, as a limited factual assessment, but as a question to be answered by reference to the factors, suitably applied, referred to by the CJEU and the Supreme Court.”

I respectfully agree with the interpretation and approach propounded by Moylan J. In my view, it is the right approach to be applied when assessing habitual residence in proceedings under the MCA.

By way of illustration only, it is instructive to compare the facts of SW with those of Health Service Executive of Ireland v PA and others [2015] EWCOP 38. In the former case, Moylan J held that a woman who originally lived in Scotland but who had been living in England for five years, over three of which she had spent in her own flat, under a care and treatment plan administered by Scottish agencies, had acquired habitual residence in England, notwithstanding the fact that she disliked the area where she lived and wished to move elsewhere. At paragraph 75, Moylan J observed:

“ … At least after a person has been living in one place for a significant period of time it will be difficult not to come to the conclusion that they are sufficiently integrated into their environment, whatever its composition, for them to be habitually resident there. In the present case, any other conclusion would, in my view, be placing far too much weight on an assessment of SW’s state of mind and the extent to which she feels settled.”

In Health Service Executive of Ireland v PA, a case which involved three adults from the Republic of Ireland who had been placed temporarily in English hospitals for the purposes of psychiatric treatment, I held that none of the men had lost their habitual residence in Ireland, stating at paragraph 53:

“In each case, Ireland remains the place of integration in a social and family environment. PA, PB and PC are all in this country on a temporary basis for the purposes of treatment, each hoping to return to Ireland at the earliest opportunity, and their cases are subject to regular review by the Irish Court to determine whether the adult concerned should return or remain for the time being in this country.”

I stressed, however, that these cases are cited by way of illustration only. It is axiomatic that the assessment of habitual residence in each case turns on its own facts.

DB lived in Scotland for the first 21 years of his life and has now lived in England for 7 ½ years. EC lived in Scotland for the first 26 years of his life and has now lived in England for six years. In each case, the placement was intended to last indefinitely until such time as DB and EC were respectively able to return to Scotland. In each case, the individual's life has been based in the environment of the hospital. In each case, he is unable to communicate views concerning his residence and care. In each case, the individual’s aggressive and difficult behaviour has moderated during his stay at the hospital and a good relationship has been maintained with other residents and hospital staff. Neither DB nor EC has attempted to leave the hospital. EC has family in Scotland with whom he is not in contact. DB’s father and his wife visit him regularly every 6 to 8 weeks and have telephone contact once a week. DB’s father is very keen that he should return to Scotland.

The English local authority and the Scottish authorities all submit that in both cases the duration of their stay in England is such that it is highly indicative that each has acquired habitual residence. The nature of their stay has been for the purpose of receiving treatment, but this has had a sufficient degree of stability to acquire habitual residence. At the time each moved to X Hospital, the plan was for him to remain there for an indefinite period and it has been their home for a substantial proportion of their lives. It is accepted that neither DB nor EC can be said to have socially integrated in the community in the way that might ordinarily be expected for adults who have lived in another jurisdiction for such an extended period of time. Neither DB nor EC has employment, nor does either attend any kind of day care service outside the hospital. Neither has any friends in England outside the hospital. In assessing whether that is sufficient to establish habitual residence, however, the court must look at the individual circumstances in each case. The hospital forms the centre of interest for their lives and they are fully integrated there. Each has a degree of integration in the hospital community.

It is acknowledged that neither DB nor EC has family ties in England, but the local authorities submit that this does not preclude them from acquiring habitual residence here. EC has had no contact with his family for over 10 years. It is accepted that DB’s family are in regular contact with him and that his father wishes that he should return to Scotland as soon as possible, but the authorities submit that this fact in and of itself does not determine his habitual residence. An analogy is drawn with children’s cases. The fact that a parent wishes his or her adult child to return does not preclude that child acquiring habitual residence abroad.

On behalf of the Official Solicitor representing DB, Mr O’Brien makes the following submissions. First, the placement at X Hospital was only ever intended to be temporary and for the purposes of receiving treatment. It was never the intention, either at the time of his admission or at any point thereafter, that his placement would be of a lasting or permanent character. It has been repeatedly acknowledged in assessments and reports prepared by the authorities and agencies involved in managing DB’s case that he would ultimately return to Scotland.

Secondly, it is submitted that it cannot be established that DB has been integrated into a social and family environment in England. He has remained in a hospital setting where he has received a high level of intervention and care. He has not accessed any community services such as day care centres. Even with the clearly documented improvement in his challenging behaviour, there has never been a plan for him which would have led to any reduction in his social isolation. There has been no integration into any family environment in England. The contact with his father has necessarily been limited by the distance between Scotland and X Hospital. His family, with whom he has a strong emotional relationship, have remained in Scotland and have no intention of leaving. His father continues to object strongly to his placement here and seeks a return to Scotland. The absence of any family or social integration is a reflection of the purpose of his admission to X Hospital, namely for treatment of his underlying mental health condition.

Thirdly, his residence could not be described as having effective stability, given that he has been ready for discharge from X Hospital for several years and that since his discharge from section in 2013 efforts have been made to identify a suitable placement in Scotland. Furthermore, he has now been served with notice to leave the placement.

On behalf of the Official Solicitor representing EC, Ms Khalique adopts Mr O’Brien’s submissions. She further observes that the intention and expectation from the outset was that EC would return to Scotland. His move to England was pursuant to a compulsory treatment order and since then his place of residence has very largely been governed by the relevant authority’s decision as to what would be suitable and by what has been available. Although he has not “expressed” a dislike of the place or area where he lives, the fact is that he lives in a hospital in a confined area with little freedom to integrate beyond its environs. Although it might be argued that by virtue of the duration of his stay he has acquired what might be termed effective “stability”, it is submitted that EC has not, on an objective analysis, become sufficiently integrated into his environment, given its composition, for him to be habitually resident in England. Any other conclusion will be placing far too much weight on his improved and “settled” behaviour following a period of compulsory treatment.

Although it is undesirable that an excessive amount of time in litigation should be spent in analysing this issue, it is essential for any court to satisfy itself that it has jurisdiction and to that end it must analyse properly the nature of the residence of the adult concerned in order to establish whether it has become habitual. This involves a careful consideration of the factors identified in the case law as recited above in order to determine whether the necessary degree of integration has been achieved.

In the case of both DB and EC, the duration of their respective stays in England is substantial, 7 ½ years and 6 years respectively. Plainly this is a very significant factor, but it is not by itself determinative of the question. As the CJEU and the Supreme Court have explained, the court must look at other factors alongside duration to determine if the residence has become habitual.

Here, in each case, there are a number of factors which support such a conclusion. Both DB and DC have remained resident at X Hospital throughout their time in England. They have not resided anywhere else and have not left the jurisdiction at any point. Although the long term plan in each case has been to return to Scotland, it was understood in each case that this stay would be indefinite, until such time as the individual was ready to return to Scotland and a suitable place was available. The purpose of the admission to hospital was to receive long-term treatment. In the hospital, DB and EC have each had the benefit of a steady routine as part of their treatment program. They have thereby achieved a degree of stability which has been crucial to the progress that each has made.

On the other hand, there are factors that point to habitual residence remaining in Scotland. Both DB and EC are Scottish. It was always the intention that each would return to Scotland. Their families remain in that country. In DB’s case, he has regular contact with his father who remains actively involved in his life. Neither has any family in England. Neither has established friendships or other relationships in England beyond the confines of the hospital, nor has he had significant access to the local community outside the hospital.

It is important to emphasise that there is no absolute measure of integration which has to be achieved in every case for residence to become habitual. As Baroness Hale and others have emphasised, each case turns on its own facts. The court must assess habitual residence in the context of the circumstances of the individual concerned. In these cases, although the lives of DB and EC in England have not been characterised by the degree of social or family integration enjoyed by most people, the individual circumstances of both DB and EC mean that neither is able to integrate in a family or social environment anywhere in a conventional way. Wherever he resides, the life of each of them would be focused on his residential unit. Within these restricted circumstances, and having regard to all the factors identified above, I find that each has achieved a degree of integration at X Hospital.

Balancing all the relevant factors identified by the parties, it is clearly established in my judgement that each has acquired habitual residence in England. The duration of their respective stays here – 7 ½ and 6 years respectively, coupled with the other factors identified above outweigh the factors identified by the Official Solicitor which he submits point to habitual residence being retained in Scotland.

Accordingly, this Court has jurisdiction to determine issues concerning the future welfare of both DB and EC. I will in due course give such directions as necessary to make that determination.