AB, Re

S

AB

The judgment was handed down to the parties by e-mail on 25^th September 2020. It consists of 34 pages, and has been signed and dated by the judge.

The Issues

AB is presently living and being cared for at B Care Home in London, pursuant to arrangements made and authorised by the Second Respondent Local Authority but contrary to the wishes of the Applicants.

In these proceedings the Court is asked:-

Capacity is not in issue.

These proceedings have been conducted in the midst of the covid-19 pandemic, which has had an impact on the arrangements possible for contact between AB and M whilst the applications are under consideration, and also on the way the proceedings have been conducted. The initial directions hearing was held remotely, by telephone; and this hearing has been a ‘hybrid’ of attendance mostly in person but the Second Applicant, the expert witness and a social work manager by Cloud Video Platform.

Matters considered

I have considered all the documents in the hearing bundle, which is made up of 2 lever arch files, including:

I heard oral evidence from Helena Keech, M and – remotely, via CVP - Marc Bekerman.

I heard submissions from M, S (remotely, via CVP), Mr. McKendrick QC and Ms. Davies.

I engaged directly with AB via Microsoft Teams remote link on the second morning of the hearing. She was accompanied by a nurse and the manager of the placement where she presently lives. Her solicitor was also part of the Teams call, from the courtroom.

Factual Background

AB was born in the USA on 15^th September 1998, and so is now 22 years old. Her mother, M, is a British citizen who was taken to live in the USA by her own mother sometime in the 1970s [A2]. S is AB’s sister.

AB suffered brain injuries at birth. She has cerebral palsy, microcephaly, bilateral dislocated hips and scoliosis, and is wheelchair bound. She has significant visual impairment and a history of seizures (although these appear now to have resolved.) She receives nutrition through a PEG feed. She is non-verbal.

At present little is known of AB’s life in the USA except that she was in the care of her mother. In written documents [A2] M describes herself as “a New York trained nurse assistant with three years college” and says she “operated a licensed NY State home for veterans, the elderly, and adults with learning disabilities…. managed a care home for wayward teen mothers…is a bilingual Spanish/English tutor, aerobics instructor, and West Coast Swing wheelchair dancer with her daughter.” In oral evidence M made no mention of these occupations and described only dependence on state benefits for housing and income.

S continues to live in the USA. She is described by her mother [A2] as “a SUNY college graduate and HR professional. She is a young adult who manages her own life in the States. She typically provides extended respite for her sister when needed.”

AB’s father, T, has played no part in these proceedings. His whereabouts are unknown to the Respondents [D107]. M has told a social worker that he was abusive.

On 29^th November 2019 M and AB flew to the UK, on one-way tickets [D46]. Although they arrived via Gatwick airport, it would appear that they went initially to Aberdeen, where the City Council paid for their temporary accommodation in a hotel and a rail ticket back to London. Thereafter, they stayed for a short time with M’s sister, then her niece. Latterly they stayed with M’s aunt, in her third floor flat with no lift.

On 14^th December 2019 AB was taken to King’s College Hospital in an ambulance. M was concerned that AB had been “making unusual crying sounds during a feed” [A3]. The hospital subsequently raised safeguarding concerns about M’s feeding practices. AB was considered medically fit for discharge by 18^th December but she remained an inpatient for almost three months because there was no accessible home to which she could be discharged.

On 9^th March 2020 AB was discharged to B Care Home. Initially M stayed with her there, apparently because she had no other accommodation and expected to be allowed to stay with her daughter. The covid-19 emergency lead B Care Home to enforce restrictions on visitors. Police were involved in removing M.

A Standard Authorisation in respect of deprivation of liberty in AB’s living arrangements at B Care Home was granted on 9^th April 2020, with effect for 12 months [C29]. It is a condition of the Standard Authorisation that “[t]he Managing Authority … facilitate regular telephone contact between [AB] and her mother whilst [M] is unable to visit her in person, at a minimum level of one telephone call per week.” M is appointed as AB’s Relevant Person’s Representative.

M is presently living in accommodation which was provided to her following an application for assistance as a homeless person under Part 7 of the Housing Act 1996. The Second Respondent has informed the court that M has been assessed as “not in priority need;” and that she had a statutory right to seek a review of that decision but has not done so. The duty to accommodate has now come to an end. Eviction proceedings have not been commenced only because of the general moratorium of such proceedings in circumstances of pandemic, which moratorium is expected to expire imminently. M considers that she has done what is required to challenge any decision that she cannot continue to live in her current accommodation but she also contends that she should be assessed for and provided with accommodation suitable for AB to live with her.

These proceedings

Proceedings in the UK were begun when M and S made a COP1 application [B17] dated 29^th May 2020 seeking:

“An Order to uphold United States Deputies:

---Section 15(1)(c) of The Act, which states, I am acting lawfully in England and Wales when exercising authority under my Deputyship.

---Schedule 3, Part 4 of the Act, the Proposed Protective Measure, wherein the Deputy for the person without capacity does not require approval of a foreign court to be regarded as the protective authority for the person without capacity.”

In Annex B to the application M informed the Court [B3] that: “A legal Advance Directive was put in place in October 2014. The New York State Department of Health MOLST Form has been kept currently yearly at [AB]’s annual GP appointments; the last update being the 5^th of November 2019. As Deputy I have been authorised and empowered by court order to make all decisions of Health and Welfare for [AB], who lacks all mental, intellectual and developmental capacity.”

There was filed with the application numerous documents, including

By order made on 10^th June 2020 [B33] the application was stayed pending the filing of further documents specified in a schedule.

Meanwhile, the London Borough of Southwark had been notified of the application and filed a COP5 Acknowledgment [B29] informing the Court that it “is currently providing care to [AB] and so has an interest in the application’s outcome.” The Local Authority indicated that it “supports the application made under schedule 3, in so far as it will provide clarity regarding recognition of the Order but are (sic) of the view that any other matters to be determined…should be determined under section 21A.”

On 19^th June 2020, following referral of further documents filed by M (not fully compliant with the schedule) and the Local Authority’s COP5, an order [B35] was made which essentially progressed the matter as a challenge to the Standard Authorisation pursuant to section 21A of the Mental Capacity Act 2005. The Official Solicitor was invited to act as Litigation Friend for AB and the matter was listed for a directions hearing, to be conducted by telephone, on 7^th July 2020.

In the meantime, M and S filed a further COP1 application [B41], dated 30^th June 2020, exactly repeating (at section 4.1) the terms of their first application. This time, in Annex

An order was made on the papers on 2^nd July 2020 [B61] providing for all applications to be considered at the hearing on 7^th July.

M then filed a COP9 application [B62] dated 3^rd July 2020 seemingly objecting to the appointment of the Official Solicitor as Litigation Friend for AB and seeking to be allowed to fulfil that role herself.

At the telephone hearing on 7^th July 2020 the Official Solicitor acted as Litigation Friend for AB and arranged for her representation by Leading Counsel. An order [B67] was made which:

Matters did not run smoothly to the next hearing. No fewer than thirteen COP9 applications were filed and resolved by me as follows:

On the second morning of the hearing, three further COP9 applications were filed:

American proceedings

Within the disclosure provided from the Second Respondent there was an e-mail from M dated 28^th February 2020 which included the following account [D296]:

“I’ve protected [AB] from doctors her whole life. In the US however, there had been so much history of their failed attempts that they tried to prevent me from even getting simple monthly medical supplies, equipment, orthosis, and even her Pedia Smart formula for [AB]’s daily eating. I’ve seen plenty of it there and some of it continues here because elite doctors are part of the same western system. Every time we disagreed with their desired treatment for [AB] we were presented with ethic committee hearings, court dates, and challenges for guardianship.”

It was as a result of this information, and its disparity with the impression generally being put forward by M, that AB’s representatives sought – and were granted - permission to have direct discussions with the US courts. As a result, further information is now available about background events before AB was brought to the UK.

The documents provided by the US court include the following:

Positions of the parties

The Applicants seek the immediate return of AB to the care of M. She brought to the hearing on its second day the original Letters of Guardianship, bearing the raised seal of the US court. Although originally the Applicants relied on these orders as the basis for seeking AB’s return to her mother’s care, by the end of the hearing their position seemed to be that those orders could be disregarded. Intending that M and AB were now resident in the UK as a long-term arrangement, M considered that what she wants now is an English welfare deputyship under the Mental Capacity Act 2005 effectively to replace the American Letters of Guardianship. Understandably, the focus of the Applicants is very much on the immediate return of AB to the care of her mother, rather than the technicalities of procedure.

In a “draft order” submitted by M, she has set out further provisions which she seeks, including:

The Respondents are agreed that AB is still habitually resident in the USA, and any issues in respect of her long-term welfare fall to be considered first by the US courts. They contend that the jurisdiction of the Court of Protection is presently limited. They are further agreed that the question of recognition of the American Letters of Guardianship must be determined first, before any determination of the s21A application can be made. The Official Solicitor invites the Court to refuse to recognise the American Guardianship orders on grounds of public policy but to provide for the matter to be referred to the US court as soon as possible, making in relation to AB herself only such orders as are immediately necessary for her protection pending further order of the US court.

The Legal Framework

On 13^th January 2000 the Convention on the International Protection of Adults (“the Convention”) was formally concluded at the Hague. The Convention makes provision for mutual recognition of protective measures by Contracting States.

The Convention was accompanied by an explanatory report by Professor Paul Lagarde (“the Lagarde report”), which was reissued with amendments in 2017.

The United Kingdom has signed the Convention but has ratified it only in relation to Scotland, not yet in relation to England and Wales (Footnote: ¹).

The primary source of domestic law in England and Wales is Schedule 3 of the Mental Capacity Act 2005 (“the Act”), which is given effect by section 63 of the Act:

Paragraph 2(4) of Schedule 3 provides that “an expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention."

Schedule 3 of the Act is headed “International Protection of Adults.” In broad terms, it contains two parallel sets of provisions:

Those parts of Schedule 3 which are currently effective apply to “protective measures” in respect of an “adult.”

Th

It is reasonably settled that the meaning of “habitual residence” under the Act should be the same as is applied in other (family law) instruments such as the 1996 Hague Convention on the International Protection of Children, and EU Council Regulation 2201/2013 (“Brussels IIa”). (Footnote: ²) “Habitual residence” is therefore a question of fact, to be determined by reference to the conditions and reasons for the person’s stay in a particular jurisdiction, its duration, and any other factors which make clear that the person’s presence is not in any way temporary or intermittent.

The scope of the ‘full, original’ jurisdiction of the Court of Protection – that is, its powers to make declarations and orders under sections 15 and 16 of the Act – is set out in paragraph 7(1) of Schedule 3:

Additional powers to recognise and enforce foreign protective measures that relate to adults, irrespective of any reciprocal arrangement, are set out in Part 4 of Schedule 3. The basic provisions are in mandatory terms:

Paragraph 19 of Schedule 3 goes on to provide for circumstances in which the Court of Protection may disapply the mandatory provisions:

I have considered various authorities as to the effect of these provisions and how they should be applied:

In respect of ‘public policy’ considerations, Mr. McKendrick referred me to two additional authorities:

In terms of procedure, I remind myself of the specific rules in respect of applications in connection with the Court’s additional jurisdiction under Schedule 3 of the Act. They are set out in Part 23 of the Court of Protection Rules 2017 and Practice Direction 23A.

Paragraphs 7 – 12 of the Practice Direction set out what is required from the applicants:

Paragraphs 13 – 17 of the Practice Direction set out the procedure to be followed by the Court:

Paragraphs 18 – 20 of the Practice Direction make specific provision for the procedure to be followed where issues of habitual residence arise:

Following amendment with effect from 1^st April 2009, the Mental Capacity Act 2005 provides a mechanism for authorisation of deprivation of liberty in the living arrangements of an incapacitous person at a care home or hospital - the ‘deprivation of liberty safeguards’, commonly known as “the DOLS scheme”, which provisions are set out in Schedules AA1, A1and 1A to the Act. In essence, and subject to safeguards, the Supervisory Body (usually the Local Authority) of a care home or hospital may grant an ‘urgent’ or a ‘standard’ authorisation of the deprivation of liberty.

Pursuant to section 21A of the Act, the Court may review the lawfulness of the detention:

The qualifying requirements for an authorisation under the DOLS scheme are set out at paragraph 12 of Schedule A1:

The ‘no refusals requirement’ is defined at paragraphs 18 - 20 of Schedule A1:

Procedural considerations in these proceedings

The Applicants are unrepresented in these proceedings.

Mr. McKendrick notes in his position statement (at paragraph 22) that “M has clearly been informed of her right (as AB’s RPR) to non-means tested legal aid.” On a previous occasion (Footnote: ³) I have noted scope for argument as to whether this interpretation of the Civil Legal Aid Regulations is correct in circumstances where, as here, the RPR is representing their own position and the protected person has independent representation taking a different approach. Nonetheless, it is a position which solicitors approached by M to act for her in these proceedings would be expected to explore.

M was calm, courteous and self-possessed throughout the hearing. When invited to explain why she was unrepresented, she told the Court that “I haven’t found anyone I could instruct who would take my case…they had changed their mind and made other claims…. They had wanted so much information…there seemed something corrupt about what they’ve done.” When asked to identify solicitors’ firms which she had approached but apparently declined to act for her, M was unable to recall any names except for the firm which acts for AB herself, “Wainwright” or “Oscar.”

It is notable from the documents disclosed by the US court that M has previously talked of instructing an attorney, and then shown no sign of actually having done so.

I am satisfied that acting in person is very largely an approach which M has chosen. It is her right to do so. In my judgment, her lack of representation is not a reason for the proceedings not to progress.

I have considered whether this matter ought to be determined by a Tier 3 judge. Mr. McKendrick QC explained that this was also considered at the telephone directions hearing before the Tier 1 judge, when the matter was listed before me. No party now seeks vertical transfer. Particularly fortified by paragraph 17 of PD 23A, I am satisfied that it is not necessary to import the inevitable delay which transfer to a Tier 3 judge at this point would bring, and I may deal with these proceedings today.

AB’s habitual residence

It is not in dispute that AB was habitually resident in the USA up to 29th November 2019, having lived there all her life since birth. The question to be determined is whether her place of habitual residence changed when M brought her to the UK or subsequently; and that question turns, in my judgment, on whether M was acting properly within the scope of her Letters of Guardianship.

The expert evidence: In his written report Mr. Bekerman confirmed [F8] that the photocopied documents provided by M “do appear to be consistent with the Court documents relating to Article 17-A guardianship which I have seen from other New York State Courts” and explained [F2] that

“…a guardianship pursuant to Article 17-A is driven by diagnosis as opposed to the abilities and deficits of the person alleged to be under a disability. If the Surrogate Judge finds that the provisions of Article 17-A have been met and grants the requested guardianship, substantially all of the rights of the person determined to be under a disability will be impaired as the caselaw generally provides that the powers of a Guardian under Article 17-A cannot be tailored to the needs of a particular ward.”

Since writing his report, Mr. Bekerman had been provided with a copy of the further information disclosed by the US Court and exhibited to the statement by AB’s solicitor. He explained orally that the LETTERS OF GUARDIANSHIP (PERSON ONLY) 17A dated 1^st February 2017 [D397] is the effective authority. He confirmed that such authority does extend to deciding where AB lives and how she is cared for, “subject to the Court’s power to supervise the Guardian.”

Mr. Bekerman confirmed that M’s ‘Notice of Motion’ e-mail [B206] should have had no effect because it is not in the proper format, has no supporting papers and identifies no respondents. He speculated that it “may have been enough for Erie to speak to Monroe about transfer.” He confirmed that “usurpment” is not a term of the relevant statute, and 1750-b is “simply for healthcare decisions.”

Mr. Bekerman explained that a petition for discharge of guardianship is “filed” and an order is “issued”; and a copy of the petition would not usually be provided to the Guardian whose discharge is sought until the order is issued. Asked about why there was apparent delay between the date of the petition [4^th October 2019 – D412] and the date of the order [9^th December 2019 – D417] he explained that the court may have had a backlog or there may have been “concerns,” possibly to do with the Letters having been issued from the Erie County Court but the petition issued in the Monroe County Court.

Asked about the apparent withdrawal of the petition for discharge, Mr. Bekerman noted that there appeared to have been “an informal withdrawal” [by e-mail – D431]. His view was that “it may be best practice to get a judicial order but I don’t know if it’s necessary.” He confirmed that, AB now having been located, the discharge proceedings could be restarted.

The Applicants’ evidence: M herself has given a number of explanations of how she came to move to the UK with AB:

In respect of historic concerns about her care of AB, M denied having previously moved AB within the state of New York because of adverse allegations. Asked about the report dated 2/1/2012 [D372] which records her stating that she ‘was leaving the area so as not to “just feed into someone else’s agenda” with respect to [AB]’s needs’, M acknowledged that “this sounds like something I could have said” but she considered that the 2012 allegations “were not supposed to be listed as substantiated.”

Asked about Marcia Rivera’s report of October 2019, M denied having received it before it was disclosed in these proceedings, and said she disagrees with most of it – “she kept coming to our apartment. The reasons she was coming made no sense to me.” M considered that “No, I didn’t know they had concerns because I’d answered her questions.” She later said that she “was aware of the opposite of concerns – these questions didn’t have anything to do with wanting to help. I was not aware of the risk of guardianship being taken away because it was just an insane situation.”

However, she acknowledged that “yes, I was aware of the possibility of proceedings… It’s fair to say that when I approached Erie County Surrogate Court they suggested I get representation…[and] they said I could get it transferred to Monroe [but] I didn’t make an application.” She denied having seen the transfer order [D415] or the show cause order [D417] and maintained that “as of November 2019, I had no awareness of proceedings.” She did however consider that “they were doing something illegal, so I complained to the Governor’s Office. No, I didn’t leave the jurisdiction because of this, because he fixed it.” When S told her about the show cause order, having received a copy in the post, M “had no interest” and told her “just throw it out in the trash where it belongs.”

When Ms. Davies suggested that there was a pattern of M moving when social services raised concerns, M replied that this was “101% not true.”

M was asked about the apparent lack of planning of arrangements for care of AB in the UK. She explained that she had planned to stay with family members, who were “prepared to help because they knew we were in crisis.” The hotel stay in Aberdeen was because social services there “offered” to pay. She considered that she had everything she needed medically for the care of AB.

M described her decision to live in the UK as “permanent” but also that her future plans, “depend on what happens with my daughter.” She explained that she refused to leave B Care Home without police intervention because she felt this was necessary to make clear that she was not leaving her daughter voluntarily. She confirmed that she has been living in accommodation provided by the Local Authority since April 2nd, and she does not have accommodation available to her in the US. Later, she said that she “is staying in Britain, and I want [AB] to stay with me.”

S read her statement by way of submissions. She also explained that, in her view, the UK is AB’s “new home.” She described her family has having “already relocated to the UK before we even knew about anything filed at Monroe. My mother had authority to move my sister.”

The Local Authority contends that there is a pattern of M leaving a jurisdiction to avoid proceedings, and her move to the UK with AB is part of that pattern. Ms. Davies emphasised the shallow planning for care of AB on arrival in the UK – no settled accommodation, no medical arrangements, no income – and the speed of breakdown in AB’s care as a result.

The Local Authority’s position is that AB’s current connection to the UK is very weak – she has no settled home here other than the care home, she has spent all her life until November 2019 in the US, she has family members in the US (sister and father) as compared to more distant relatives (apart from her mother) in the UK none of whom have provided any sustained support. The real intention, it is said, of AB being brought to the UK at all was to avoid imminent proceedings for the discharge of guardianship powers, and that kind of intention cannot be a sound basis for a change in habitual residence.

The Official Solicitor’s position is also that AB was and remains habitually resident in the US. The OS accepts that M was properly granted Letters of Guardianship which include authority to determine where AB lives but, whilst emphasising for M’s benefit that there is no suggestion she has acted “criminally,” Mr. McKendrick submits that her removal of AB from the US was not a valid exercise of guardianship powers because it was done “in bad faith” – M knew that there was an investigation underway in the summer of 2019, knew she was at risk of losing guardianship powers, and moved in an attempt to evade that possibility becoming reality. Furthermore, when S received the order of 9^th December 2019, M’s response was to disregard it; and, by failing to mention in her applications to this court anything about that order, she has also come to the English court in bad faith.

Conclusions: I listened very carefully to M’s oral evidence. The impression I formed was of an intelligent and genuinely caring mother but also one who is highly distrustful of public authorities, unable or unwilling to understand that they may have legitimate concerns about AB’s wellbeing or a valid viewpoint about her welfare.

I do not accept M’s denial that her move to the UK was connected with the prospect of US proceedings to challenge her guardianship of AB. On her own account M was clearly aware of, and resented, Marcia Rivera’s interest in the care of AB. It is possible that M genuinely did not understand her concerns but it is clear to me that M did understand that Marcia Rivera’s involvement with AB represented a threat to her own authority to make decisions in respect of her daughter, and that court proceedings were imminent. I am satisfied that, as she had done before, M’s response was to move AB out of the jurisdiction of the court, consciously in a bid to avoid its exercise.

M’s decision to move AB to the UK was therefore not a proper exercise of legitimate powers, and not effective to change AB’s habitual residence.

Moreover, AB’s circumstances since her arrival in the UK cannot be said to have settled such that her habitual residence has changed by passage of time notwithstanding the bad faith in the arrangements for her arrival. Any support that AB has received from wider family has been extremely transient. She lives in a care home precisely because she had

In my judgment, AB presently remains habitually resident in the USA.

It follows from this conclusion that, pursuant to paragraph 7(1)(c) and (d) of Schedule 3, this court may only exercise its ‘full, original jurisdiction’ in respect of AB if the matter is urgent or if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to her.

M has expressed concerns about AB’s current situation but there is no evidence of any immediate threat to her life or safety and, I am satisfied, no immediate need for further or other protection. It is of course important that decisions about AB’s long-term welfare are taken as soon as possible but there is no ‘urgency’ in the sense identified by Cobb J in TD & BS v. KD & QD. At this point, the jurisdiction to determine wider welfare issues must be yielded to the courts of New York State. This court should only make such temporary and limited provision as is required to safeguard AB whilst that process is undertaken.

Recognition of the Letters of Guardianship

I am acutely conscious of the mandatory nature of paragraph 19(1) of Schedule 3 and the requirement to “work with the grain of the order” of a country whose legal systems, laws and procedures are closely aligned to our own. It has not been suggested by any party that either the Erie County Surrogate Court or the Monroe County Surrogate Court is anything other than “an experienced court with a sophisticated family and capacity system.”

Nonetheless, the position statement filed on behalf of AB shortly before the hearing set out the Official Solicitor’s preliminary position that I should disapply the mandatory recognition requirement on the basis that recognition would be contrary to public policy. At the close of the first day of the hearing, I asked Mr. McKendrick to consider further the policy which is said to be offended, for further submissions at the end of the hearing.

In closing submissions, Mr. McKendrick identified the policy of “judicial comity.” His argument is that, if M knew that her care of AB was being investigated with the possibility of steps to discharge her guardianship and she left the USA deliberately to avoid that possibility, recognising her guardianship now would amount to failure of judicial comity with the Monroe Surrogate Court. In effect, the determination of issues put before Monroe Surrogate Court has been thwarted by actions of M taken in bad faith. Recognition of the guardianship authority in the face of frustrated proceedings to discharge it would endorse the bad faith of M. It is not the measure (ie the Letters of Guardianship) which is manifestly contrary to public policy but rather the recognition of it in circumstances where the US court was actively engaged in the process of considering whether the measure should be discharged immediately before AB’s was removal from its jurisdiction.

I had also asked Mr. McKendrick to consider whether the recognition application could or should be adjourned, or determined on an interim basis. His submission was that there could be no adjournment of the recognition application, and no “interim” refusal to recognise, because such would be contrary to the mandatory nature of paragraph 19(1). If the purpose behind either adjournment or interim decision was to revisit the question of recognition in the light of the US court’s determination of the discharge petition, a better approach would be to require a new application for recognition if the discharge petition failed. Such application would then be free of any question of ‘bad faith’.

Finally, I had asked Mr. McKendrick to consider whether this court could, or should, recognise the US Letters of Guardianship but then also suspend them. Mr. McKendrick professed himself “not at all confident” that this court has such power, although he also properly acknowledged that paragraph 128 of the Lagarde Report (Footnote: ⁴) seems to suggest that this may indeed be permissible.

I am most grateful to Mr. McKendrick for his submissions on these points, which I have found of great assistance.

In my judgment, it is important to consider the effect of recognising the Letters of Guardianship granted to M, which would be to recognise that M has authority to decide where AB lives and how she is cared for (Footnote: ⁵). In reality, M would decide that AB should immediately leave the care home to live with her, whatever the insecurities of M’s own position and the limitations of her resources to provide care at the moment.

The American court has already been asked to determine an application to revoke M’s authority to make such a decision. It has only been prevented from doing so by M removing herself and AB from its jurisdiction. In those circumstances, I am clear that it would be contrary to the requirements of judicial comity to recognise now that very authority which the American court has been asked to review. I have come to the firm conclusion that it is clearly right and just, at this point, to disapply the requirement of mandatory recognition on the grounds of the policy of judicial comity. Such conclusion is not a reflection on the merits of the Letters of Guardianship themselves, or the powers of the US court to grant such Letters. Rather, it is a reflection of the circumstances in which the application for recognition comes to be determined by this court.

It follows from that conclusion that I should dismiss the application for recognition.

To be clear, I make no decision on whether this court could recognise the foreign protective power and then immediately suspend it. That decision will likely fall to be made in the circumstances of another case, on another occasion. Furthermore, there is nothing in the dismissal of this application for recognition which prevents a further application for recognition of the same Letters of Guardianship in the light of any future decision by the US court.

The standard authorisation and the s21A challenge

Since it invokes Article 5 of the European Convention on Human Rights, the challenge to the Standard Authorisation in respect of deprivation of her liberty in AB’s current living arrangements is not dependent on habitual residence. At least in respect of the qualifying requirements and pending further order of the US court, that challenge can and should be determined by this court at this stage.

There are two qualifying requirements which are subject to challenge in respect of the current standard authorisation for deprivation of AB’s liberty: the ‘no refusals’ requirement and the ‘best interests’ requirement.

On a narrow interpretation of paragraph 20 of Schedule A1, M does not come within the class of persons whose valid decision could mean that AB failed to meet the ‘no refusals’ requirement because M is not and never has been “a donee of a lasting power of attorney” granted by AB or “a deputy” within the meaning of the Act.

However, the authority encompassed by Letters of Guardianship granted by a US Court is clearly comparable to English deputyship (it would appear, even wider.) Following the principle of recognition by operation of law, as explained at paragraph 116 of the Lagarde Report, M was in an equivalent position to an English deputy with authority to determine residence, at least until she took a step towards enforcement. A narrow interpretation of paragraph 20 may therefore be vulnerable to criticism of inconsistency with the mandatory nature of the recognition provisions, and a wider interpretation – which considers whether M falls within the definition of persons who may make a valid decision for the purposes of the ‘no refusals’ requirement- ought to be considered.

M has taken steps towards enforcement of her Letters of Guardianship, by making her application to this court for recognition. Her application has been refused. Her authority is not recognised. In my judgment, it follows that – whether a narrow or a wide interpretation of paragraph 20 of Schedule A1 is adopted – any decision which M may have taken that AB should live with her and not at B Care Home is not such as to count as a ‘valid decision’ for the purposes of the ‘no refusals’ requirement.

In respect of the current standard authorisation in respect of AB, the ‘no refusals’ requirement is satisfied.

The Applicants contend that AB’s current living arrangements are not in her best interests. At this point, I do not agree. M has no secure accommodation suitable for meeting AB’s needs. The events of December 2019, when AB required hospital admission so very rapidly after her arrival in the UK, demonstrate that M would presently struggle to keep AB safe and well. As a protective measure on a temporary basis pending further decision of the US court on wider welfare issues, I am satisfied that it is in the best interests of AB to remain living and receiving care at B Care Home.

In respect of the current standard authorisation in respect of AB, the ‘best interests’ requirement is satisfied.

The current standard authorisation is effective until 8^th April 2021. There is no need for the court to make any further provision than to dismiss the s21A challenge.

Conclusions and Further steps

AB remains habitually resident in the USA, and this court yields jurisdiction in respect of her welfare to the courts of New York State. The application for recognition of Letters of

AB’s representatives are authorised and required forthwith to disclose any document filed or order made in these proceedings, and this judgment, to the Monroe County Surrogate Court for the purposes of that court taking such further steps as it considers appropriate in respect of AB.

The Second Respondent is authorised and required forthwith to disclose any document filed or order made in these proceedings, and this judgment, to the Monroe Adult Protection Services, for the purposes of taking such further steps as the APS considers appropriate in respect of AB.

In respect of these proceedings, I shall list a further attended hearing on 25^th November 2020 at 10.30am. At that hearing, the court will consider any further orders of the US

In the meantime, I am grateful to Ms. Davies and the London Borough of Southwark for confirming that a named officer of the housing department will contact M within 28 days for the purposes of providing her with support to make such applications or responses as are necessary to pursue all proper avenues for obtaining secure accommodation. I encourage M to engage with that person.

AB’s representatives urge that Speech and Language Therapy assessment of AB is essential to ensure that AB’s ability to communicate is maximised. I endorse that assertion. When I met AB virtually, she had the caring attention of a nurse. AB smiled frequently but she also groaned, and it was not possible for me to discern if either expression was a response either to our engagement or to her situation generally. Expert assistance in maximising her communication can only further her best interests and should be pursued as far as possible.

I have expressed concern at the limited contact between M and AB at present. I acknowledge that the covid-19 pandemic has presented extra difficulties in the arrangement of contact, and that M has not taken up all the contact which she could have (apparently on the basis that she does not feel it is fruitful to make a three hour round trip only to spend a limited time with AB and not be able to take her ‘home.’) However, the social worker was clear that there is no impediment to increased contact between M and AB, within any pandemic restrictions which may be imposed from time to time. I endorse the advocates’ suggestion that a recital should be included in the order made today setting out the opportunities for contact, and how M may avail herself of them.

Finally, there is lack of clarity as to AB’s status within the UK. The Applicants have described her as a British citizen on numerous occasions but no confirmation of that status has been provided. It may be that she is entitled to apply for such status. M has informed the court that both her own and AB’s passports are currently with the UK Passport Office. I will therefore make a third party disclosure order providing for HM

Counsel are requested to file draft orders giving effect to this judgment (agreed if possible), for approval on the papers.