QD (Jurisdiction: Habitual Residence)

This application, brought in the Court of Protection, concerns QD (‘QD’); he is a man in his 60s. He suffers from Dementia in Alzheimer’s disease (Footnote: ¹), which in his case is connected with an atypical form of Parkinson’s disease; as a consequence of these conditions he has a significant cognitive impairment. The joint applicants are his adult son (‘TD’) and adult daughter (‘BS’), both children from his first marriage. The First Respondent (‘KD’) is QD’s second wife. QD is himself the Second Respondent and appears in these proceedings through the Official Solicitor as his litigation friend. All parties have been ably represented; I am particularly grateful to Mr McKendrick QC and his solicitor who were instructed at very short notice.

Until early September 2019, QD was living with KD in Spain with his wife, and had been so for several years. On or about 3 September, QD flew to this country in the company of TD and BS; this journey was made without the knowledge, let alone the agreement, of KD. By application made on the following day the Applicants sought (and seek) a range of welfare orders concerning their father; in particular they seek an order that he reside at a care home in England (which I shall refer to as ‘The Pines’ – a pseudonym), that he not return to Spain, and that he have only supervised contact with KD, his wife.

KD opposes the application. By notice dated 10 October 2019 (Footnote: ²), KD has raised a preliminary issue, namely whether this court has jurisdiction to determine the application at all, or whether proceedings relating to QD should be effectively stayed here pending transfer to Spain. This preliminary issue has been listed before me for determination.

Miss Plant for TD and BS contends that while QD was habitually resident in Spain until early September, he is now habitually resident (Footnote: ³) in England, and that therefore I can apply the provisions of the Mental Capacity Act 2005 (‘MCA 2005’) in the usual way. She further contends, as a feature of this argument, that the removal of QD from Spain was not wrongful, but was justified under the common law doctrine of necessity. She alternatively contends that jurisdiction is established on the grounds of ‘urgency’ (Footnote: ⁴). Although the applicants’ case was not specifically advanced on the basis that it may not be possible to “ascertain” QD’s habitual residence, if that were in fact my conclusion, I could exercise jurisdiction based upon his physical presence here⁵.

Alternatively, Miss Plant argues that if I were to find that QD is as a matter of fact habitually resident in Spain, I should in the circumstances invoke the inherent jurisdiction so as to enable me to make substantive orders in relation to QD, a vulnerable adult, in relation to his care, contact with others and his residence. Ms Plant accepts that I could not use the inherent jurisdiction to authorise the deprivation of QD’s liberty, but orders in that respect could be made by resort once again to the provisions of MCA 2005. Thus, I would be, on her case, operating a hybrid jurisdiction founded in part on the inherent jurisdiction, while exercising statutory powers under the MCA 2005.

Mr Roche and Mr McKendrick QC separately contend that QD is and at all material times was habitually resident in Spain, and that the court’s powers here are therefore limited simply to making protective orders pending transfer of the proceedings to the Spanish Court.

Section 63 of the MCA 2005 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 (Footnote: ⁵) (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.”

Schedule 3 (of the MCA 2005) applies to an ‘adult’, who is defined for these purposes as a person who “as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests, and has reached 16” (see Schedule 3, para.4 ibid.).

Schedule 3, para.7 MCA 2005 provides, materially, 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”.

‘Protective measures’ (referred to in para.7(1)(d) set out above) are defined in the MCA 2005 as follows: (per Schedule 3, para.5):

“(1)

“Protective measure” means a measure directed to the protection of the person or property of an adult; and it may deal in particular with any of the following—

(a)

the determination of incapacity and the institution of a protective regime,

(b)

placing the adult under the protection of an appropriate authority,

(c)

guardianship, curatorship or any corresponding system,

(d)

the designation and functions of a person having charge of the adult's person or property, or representing or otherwise helping him,

(e)

placing the adult in a place where protection can be provided,

(f)

administering, conserving or disposing of the adult's property,

(g)

authorising a specific intervention for the protection of the person or property of the adult”.

It is clear that para.7(1)(d) provides an exceptional jurisdiction, empowering the court to take measures to protect the incapacitated person which are temporary in nature and whose territorial effect is limited to the state in question.

Habitual residence is a question of fact, to be determined by reference to a wide range of circumstances of the particular case; it is not a legal concept. The test of habitual residence promulgated by the European Court (and adopted domestically) is ‘the place which reflects some degree of integration by the [child/adult] in a social and family environment in the country concerned’. Given the pivotal significance of the concept of ‘habitual residence’ in family law statutes and instruments, the phrase has generated significant commentary in domestic family law jurisprudence; it has been authoritatively established that interpretation of the phrase ‘habitual residence’ in the context of the MCA 2005 should follow the same approach. In this regard, I have had regard to the comprehensive judgment of Moylan J (as he then was) in An English Authority v SW and others [2014] EWCOP 43. I draw attention specifically here to [64]:-

“Given the close links, in particular between the 2000 Convention and the 1996 Child Protection Convention, as explained in the Lagarde Report; given the relationship between the 2000 Convention and the MCA; and for general policy considerations as referred to by Lady Hale in [Re A [2013] UKSC 60], it is clear to me that the definition of "habitual residence" under the MCA should be the same as that applied in other family law instruments, including BIIa”.

Thus, for these, and related, principles it is helpful to consider the Supreme Court’s decisions in Re A [2013] UKSC 60, [2013] 3 WLR 761 (in particular the ‘threaddrawing’ paragraph [54] in the judgment of Lady Hale), and Re B [2016] UKSC 4, [2016] 2 WLR 557 (in particular at [39] and [45]).

In the context of the Court of Protection proceedings, my attention was specifically drawn to the judgment of Munby J (as he then was) in Re PO [2013] EWHC (CoP). Given the significance of the principles enunciated there to the facts of this case I set out the key passages below in full:

In relation to that important passage from Re MN (Recognition and Enforcement of Foreign Protective Measures) set out in [15] of the Re PO decision (reproduced in [11] above) Munby J said this:

“[18] 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 ofnecessity requires is a decision taken by a relative or carerwhich is reasonable, arrived at in good faith and taken in thebest 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.

….

[20] 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 orwhere what is done is unreasonable or not in the best interestsof 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…” (emphasis by underlining added).

As I earlier indicated (see [5] above), Ms Plant submits that if I were to find that QD is habitually resident in Spain, I should invoke the inherent jurisdiction to found a basis for making welfare-based orders. I therefore turn to this aspect of the argument.

I recently observed in Wakefield MDC & another v DN & another [2019] EWHC 2306 (Fam) at paragraph [19], that the inherent jurisdiction (“the great safety net” as Lord Donaldson described it in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1), survived the coming into force of the MCA 2005. The clearest authority for this proposition is A Local Authority v DL [2012] 3 All ER 1064 (‘Re DL’) (sub nomRe L (Vulnerable Adults with Capacity: Court's Jurisdiction) [2013] Fam 1). It is illuminating to revisit and look with care at McFarlane LJ’s phraseology, as he defined the issue in Re DL at [1] as follows:

“The question for consideration is whether, despite the extensive territory now occupied by the MCA 2005, a jurisdictional hinterland exists outside its borders to deal with cases of 'vulnerable adults' who fall outside that Act and which are determined under the inherent jurisdiction.” And at [61]:

“In the absence of any express provision, the clear implication is that if there are matters outside the statutoryscheme to which the inherent jurisdiction applies then thatjurisdiction continues to be available to continue to act as the 'great safety net' described by Lord Donaldson”.

I highlight these paragraphs to emphasise that McFarlane LJ was plainly contemplating the use of the inherent jurisdiction to protect vulnerable adults where their situation falls ‘outside’ of the statutory scheme; it is only those cases which can be caught by the ‘great safety net’.

McFarlane LJ’s approach in Re DL is, of course, entirely consistent with the longstanding and principled approach which the courts have adopted and applied more generally. That is to say, where Parliament has created a statutory scheme which is intended to be exhaustive, the common law should not go behind that scheme (Black v Forsey [1988] SC (HL) 28, discussed also in Re L, [1998] UKHL 24; [1999] AC 458; [1998] 3 All ER 289; [1998] 3 WLR 107; [1998] 2 FLR 550; [1998] 2 FCR 501; [1998] Fam Law 592). In essence, the terms of the statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the statute or any supplementary regulatory framework. It is my clear view that the court has power to make a range of declaratory, injunctive, and other orders, only where these are necessary “to fill thegaps of law” and to enhance the Article 8 ECHR rights of the vulnerable: see again Re DL at [67].

The background facts are not materially in dispute. Although TD, BS and KD were all available to give oral evidence, no party sought to call them or have them called to be challenged; this decision was sensibly influenced by the wish to reduce the temperature of this family litigation in these difficult circumstances. The parties had filed additional witness statements from third parties, purporting to buttress their respective cases as to the facts; Cohen J had entirely appropriately directed on 27.11.19 that these witnesses would not be required for the hearing.

TD and BS are the two adult children of QD’s first marriage. In or about 2010, KD and QD formed a relationship, and in 2012, they moved together to live in Spain. They bought an apartment there, and since 2014 have been legal residents of Spain. QD owns a further property in Spain. It was, apparently, their intention to retire and live there. In early 2017, QD and KD were married.

Later in 2017, QD was diagnosed (by medics in Spain) with Parkinson’s Disease. In April 2018, he was diagnosed with dementia. In months which followed, KD’s role appeared to morph into that of QD’s carer (tending to his increasing needs including, cooking, washing, toileting, shaving, dressing him and accompanying him to the hospital), while enjoying the benefits of being his wife. In July 2018, on a visit to England, TD and BS arranged for QD to execute a property and finance Lasting Power of Attorney (‘LPA’) in their favour; this was done without the apparent knowledge of KD, who confirms that it was done “behind my back”. A further LPA was executed in March 2019 when QD and KD visited England again. On this visit, it is notable that KD had stayed with her adult daughter (a child from her first marriage) and grandchildren but QD did not stay there with her; arrangements were made by KD for him to stay at The Pines.

KD has objected to the grant of both LPAs referred to in the paragraph above. She has launched proceedings in the Court of Protection to challenge the grant of the disputed LPAs. Furthermore, TD advises that there is a dispute in Spain about the proposed gift by QD of a second Spanish property to TD and BS.

During the summer of 2019, TD and BS received communications from friends and neighbours of their father that he was not being cared for appropriately by KD. They became concerned that he was being neglected in a number of material respects, and that KD was concerned only with QD’s money (TD: “I believe she is draining his funds for her own personal gain”). TD and BS received further detailed reports that KD was being unfaithful to QD. In light of these allegations, TD and BS resolved to

TD contacted KD to advise her that he was proposing to visit his father; KD told TD would not be welcome to stay in her home, given what she perceived to be the “underhand” way in which he had apparently obtained the LPAs in 2018 and in 2019. KD nonetheless agreed that QD could spend the weekend with TD at a hotel. In this exchange of correspondence, KD further advised TD that she was proposing to apply (or had applied) to the Spanish court for legal guardianship of QD, and (in this regard) for a court-appointed capacity assessment. TD reflects in his statement that this news operated as: “the red flag to move promptly and effectively to successfully bring him [i.e. QD] back [to England]”.

On or about 1 September 2019, TD and BS flew to Spain; TD and BS maintain that they were “shocked” to see that QD’s condition had deteriorated in the months since their last meeting. TD collected QD from his home but did not take him to a hotel for the weekend; together with BS, they took QD to the British Consulate, where they obtained emergency travel documentation for QD, and flew with him back to England. On their arrival in the UK, they drove him straight to The Pines, where (according to them) he settled quickly. On 4 September 2019 they issued this application; that application is expressly founded on the basis that they had reason to believe that QD was being “drugged” by KD to keep him “inside his home”, and that she is having relationships with other men; they added “we are concerned that he is being mistreated”. TD then wrote an e-mail to KD to advise her that QD was now in England where he would remain and that he would not be returning to Spain.

On 6 September, a social worker from the local adult social care team conducted a capacity assessment, and concluded that QD was unable to make decisions about his care and contact. The social worker took the view that “his needs are best met in a residential care home setting”. She further commented that QD has a “significant impairment of the mind”; he appeared to trust TD and BS “and was unable to recall any other persons who cared for him”.

As earlier indicated ([3] above), by notice dated 10 October KD asserted that this court does not have the jurisdiction to determine the issues relating to QD. In her statement in support of this position, she says that she wishes for her husband to return “home where he belongs”, to participate in the Spanish court proceedings, adding:-

“… once he returns, I wish the Spanish court to assess his capacity and decide who is the more suitable person to look after him, after listening to all the people involved including of course his children”.

From translated court documents, it appears that on 24 September 2019 the Spanish

In October 2019, Dr. N was commissioned by the parties to complete an assessment of QD. During the assessment, QD was noted to be disorientated as to time and place, believing himself to be in Spain. Dr. N concluded as follows:

The written evidence of Dr. N amply confirms (indeed there is no dispute about this) that there is reason to believe that QD lacks capacity to make decisions about his residence, and his care and support needs, within the definitions of the MCA 2005. The parties also accept that, in those circumstances, it is highly likely that he lacks capacity to conduct these proceedings. His condition is such that there is no realistic prospect of any improvement in his capacity.

But can / should this court exercise substantive jurisdiction under the MCA 2005 in respect of QD? On the basis of the evidence available to me (and rehearsed above, specifically at [16]-[24]), I have reached the clear conclusion that QD remains habitually resident in Spain. This court must therefore decline primary jurisdiction in accordance with the provisions of Schedule 3 of the MCA 2005, and should yield to the jurisdiction of the Spanish Court. In reaching this conclusion I am particularly influenced by a constellation of factors, most prominent among them being:-

I am further influenced by the fact that, as an agreed fact, QD’s move to this country was achieved by stealth. I do not find that TD and BS can avail themselves of the ‘doctrine of necessity’, to convert what was a wrongful act on their part into a justified act. While I have no reason to question their case that they had received information which gave them concerns about QD’s welfare (and specifically the care he was receiving), it seems to me that there were options open to TD and BS other than QD’s summary removal from the jurisdiction of Spain, in circumstances for which he had no chance of being prepared. For instance, it would have been a far more reasonable course for them to have notified the police or social services in Spain of their concerns; they could/should have raised their concerns directly with KD (however difficult this would have been), rather than perpetrate a deceit upon her by removing her husband from her care. In short, their covert plan was not the only option available to them, nor was it, objectively viewed, a reasonable one. Although

Secondly, I am absolutely clear that it would not be appropriate for me to assume jurisdiction based on ‘urgency’ (per schedule 3, para.7(1)(c) MCA 2005); exercise of jurisdiction based on para.7(1)(c) would be justified in my view only where substantive orders are necessary in order to avert an immediate threat to life or safety, or where there is an immediate need for further or other protection. While it is important that decisions are made in QD’s interests as soon as possible, I do not find that there is an ‘urgency’ about the need for substantive orders. I specifically reject Miss Plant’s argument that it is ‘urgent’ for the court here to make substantive orders in order to beat the courts in Spain to do so.

Thirdly, I am equally clear that it would not be appropriate for me to deploy the inherent jurisdiction here as a means for making substantive orders in relation to QD; there is a comprehensive and robust statutory scheme available in the MCA 2005, which covers (in section 63 and schedule 3) this very issue. To apply the inherent jurisdiction here would be to subvert the predictable and clear framework of the statute in an unprincipled way. The flaw in Miss Plant’s argument was at least in part illustrated by the fact that she was obliged to accept that even if I assumed primary jurisdiction at common law, I would then need to revert to the MCA 2005 to deal with deprivation of liberty authorisations. I did not consider that the short and summary judgment of Peter Jackson J in Re Ann C [2016] EWCOP 46, relied on by Miss Plant, is of any great assistance; in that case there was very great uncertainty about the habitual residence of P (there was “relatively little information about her current circumstances” before the court: see [6] of the judgment) and the court invoked the inherent jurisdiction at the end of a very short (15 minute) hearing to hold the ring until the Official Solicitor could undertake further enquiries.

I therefore propose to exercise the limited jurisdiction available to me pursuant to Schedule 3, paragraph 7(1)(d), to make a ‘protective measures’ order which provides for QD to remain at and be cared for at The Pines and to continue the authorisation of the deprivation of his liberty there only until such time as the national authorities in Spain have determined what should happen next. I accept Mr McKendrick’s concluding submission that it is for the Spanish administrative or judicial authorities to determine the next step, which may of course be to confer jurisdiction on the English courts to make the relevant decision(s).

I shall list a further hearing by no later than 31 January 2020. I shall grant permission for the papers filed in these proceedings, together with this judgment, to be released by QD’s representatives to the Spanish authorities, with additional permission for the instruction of an expert opinion on Spanish law to advise on processes hereafter.

That is my judgment.