NEUTRAL CITATION [2025] EWCOP 22 (T2)
RE A (Habitual Residence)
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
B E T W E E N:
NEATH PORT TALBOT COUNTY BOROUGH COUNCIL
Applicant
-and-
A
(by his litigation friend, Nicola Sanders)
B
C
Respondents
JUDGMENT ON HABITUAL RESIDENCE
In this case I am concerned with A who was born in 1950. He is currently placed at D Care Home. This hearing was listed to consider whether A’s habitual residence is in England and Wales or Spain. Following receipt of submissions, I announced my decision that A’s habitual residence is in Spain. These are my reasons for that decision.
The parties to the case are Neath Port Talbot County Borough Council represented by Francesca Gardner of Counsel. A is represented by his litigation friend Nicola Sanders and by Ian Brownhill of Counsel. B is A’s wife who is unrepresented, and C is A’s son also unrepresented.
A was born in Wales but for approximately 33 years until April 2024 he resided in Spain where B remains. C lives in south Wales. A has mixed vascular dementia with significant cognitive impairment.
A spent a significant period working as a real estate professional in Spain. He achieved residency there which is due to expire in 2031. In 2018 A experienced a stroke whilst in Dubai on business. He returned to the United Kingdom where he was supported by C. He was suspected to experience several transient ischemic attacks and fell several times. It seems that at times A refused medical treatment however he was provided in-patient care at E Hospital. Upon discharge he returned to Spain. He had been advised to have follow up out-patient treatment in Wales, but his wish was to return to his home. He continued to live there with B. His health continued to deteriorate in Spain where he received care from health professionals and was diagnosed with vascular dementia. His needs were extensive such that ultimately B felt she was unable to meet them in their home. He required round the clock care. The prospect of A receiving professional residential care close to his home in Spain was considered. However, B concluded that as A could not speak Spanish it would be inappropriate for him to be placed in such a facility. It was considered that A should be placed close to his place of origin with some support from C. After exploring some options of placements in Neath Port Talbot it was arranged that he would live at D. In April 2024 C flew to Spain and brought A back with him. C is unable to provide care to A at his home; his father’s needs are complicated and significant.
A has consistently indicated that he is unhappy at D and wishes to return to Spain.
The focus of the evidence from B and C prepared in readiness for this hearing is the circumstances in which A came to Wales from Spain.
In advance of this hearing, I received very helpful skeleton arguments from Counsel on behalf of the local authority and A. They were completely aligned in submitting that A’s habitual residence is in Spain. At a pre hearing review on 20 May B disagreed and considered that A’s habitual residence was now in England and Wales. The parties had pre hearing discussions today the result of which is that B agreed that A’s habitual residence is in Spain. C considered that A’s interests are best promoted in Wales but accepted that this was not a consideration to determine habitual residence. Therefore, he did not seek to persuade the court to take the contrary view to that of the local authority and A.
There is no dispute about the law. Habitual residence is a question of fact to be determined by a wide range of circumstances of the particular case. It is not a legal concept. The test of habitual residence is ‘the place which reflects some degree of integration by the [child/adult] in a social and family environment in the country concerned’. It has been established that cases under the Mental Capacity Act 2005 should follow the same approach as cases relating to children.
In The Health Service Executive of Ireland v IM & Anor [2020] EWCOP 51, Knowles J summarised the approach when determining whether an adult with impaired decision-making capacity remains habitually resident within England and Wales. She stated;
“Habitual residence” is defined in neither the MCA nor the [2000 Hague] Convention. In An English Local Authority v SW and Others[2014] EWCOP 43, Moylan J (as he then was) held that the meaning to be given to habitual residence in the context of the Convention and the MCA should be the same as in other family law instruments such as the 1996 Hague Child Protection Convention and Council Regulation EC 2201/2003 (Brussels IIA) though he also acknowledged that different factors will be relevant and will bear differential weight (see [64]-[65]).
Thus, habitual residence is to be determined in accordance with the guidance given by the Supreme Court and the Court of Justice of the European Union in a number of recent cases. The following principles are key:
Habitual residence is a question of fact and not a legal concept such as domicile (A v A (Children: Habitual Residence)[2014] AC 1at [54]);
The test adopted by the ECJ is the “place which reflects some degree of integration by the child in a social and family environment”. The child’s physical presence should not be temporary or intermittent (Proceedings brought by A (Case C-523/07)[2010] Fam 42at [38]);
Consideration needs to be given to conditions and reasons for the child’s stay in the state in question (Mercredi v Chaffe (Case C-497/10PPU)[2012] Fam 22at [48]);
The essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce (see A v Aabove at [54]);
Both objective and subjective factors need to be considered. Rather than consider a person’s wishes or intentions, it is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there – their state of mind (Re LC (Children)[2014] AC 1038at [60]);
It is the stability of the residence that is important, not whether it is of a permanent character (Re R (Children)[2016] AC 76at [16]); and
Habitual residence is to be assessed by reference to all the circumstances as they exist at the time of assessment (FT v MM[2019] EWHC 935 (Fam)at [13]).
Further in Re LC [2014]UKSC Baroness Hale stated;
“The quality of a child’s stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then and later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another”.
In An English Local Authority v SW [2014] EWCOP 4 per Moylan J:
The overarching test for habitual residence should be the same whether one is considering adults or children, although different factors may or will have differing degrees of relevance [66].
The expression “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. The court’s focus should not be narrowed to this issue alone as a question of fact [68] and [72].
Integration, as an issue of fact, can be an emotive and loaded word. It is not difficult to think of examples of an adult who is not integrated at all in a family environment and only tenuously integrated in a social environment but who is undoubtedly habitually resident in the country where they are living. Integration as an issue of fact can also raise difficulties when a court is determining the habitual residence of a person who lacks capacity [70].
The court “should not lose sight of the wood for the trees” [71].
Where an incapacitous adult has been moved from one jurisdiction to another, the question of the authority that the person effecting the move had to make it is also important. In Re MN (Recognition and Enforcement of Foreign Protective Measures)[2010] EWHC 1926 (Fam), Hedley J held that a move which was wrongful should not effect a change in the habitual residence of the incapacitated adults and should leave the courts of the country from which that person was taken free to take protective measures [22]. In determining whether a decision is wrongful, the court must look not only at the terms of the authority conferred upon the person taking the decision, but also at their motives for taking that decision.
The fact that the person effecting the move has formed a subjective view that it is in P’s best interests may not suffice to prevent the move from being wrongful. Pursuant to s.4(9) and s.5(1)(b) of the MCA, a person making a decision on behalf of an incapacitous adult must “reasonably believe” the decision to be in their best interests. Thus, in Re QD (Jurisdiction: Habitual Residence) (No 1)[2019] EWCOP 56, Cobb J held that a decision by P’s children to move him from Spain to England was wrongful and that they could not rely upon the doctrine of necessity [29]. The judge indicated that, whilst they may have believed that they were acting in P’s best interests, this was not a reasonable belief on their part.
Jurisdiction is set out as follows:
Section 63 of the MCA 2005 provides:
"Schedule 3—
gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm 5881) (in so far as this Act does not otherwise do so), and
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:
The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to—
an adult habitually resident in England and Wales,
an adult's property in England and Wales,
an adult present in England and Wales or who has property there, if the matter is urgent, or
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.
An adult present in England and Wales is to be treated for the purposes of this paragraph as habitually resident there if—
his habitual residence cannot be ascertained,
he is a refugee, or
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):
"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—
the determination of incapacity and the institution of a protective regime,
placing the adult under the protection of an appropriate authority,
guardianship, curatorship or any corresponding system,
the designation and functions of a person having charge of the adult's person or property, or representing or otherwise helping him,
placing the adult in a place where protection can be provided,
administering, conserving or disposing of the adult's property,
authorising a specific intervention for the protection of the person or property of the adult"
It is not disputed that A lacks the capacity to conduct these proceedings and to make decisions about his residence and care. There is clear evidence in this regard set out in the assessments contained in section F of the court bundle. In particular F50-52, 55-56, 60-61 and 94-95. Based on this evidence I am satisfied A lacks the capacity in the areas mentioned above.
In my judgment the following reasons lead me to the conclusion that A’s habitual residence is in Spain;
He lived and was settled there for 33 years which is a significant period. I accept that there is no evidence that he wished to or intended to return to Wales to live when he had capacity. He chose to return to Spain following his period of ill health in 2018 whilst still suffering complications;
A was integrated into life in Spain. His permanent home was there. He built a life there over many years. He may not have spoken Spanish to any great extent nor socialised much through choice, but in all other respects his integration was complete;
He had owned property in Spain. He owns no property in England or Wales. It is suggested that he and B lived in rented accommodation from 2011. This is also a significant commitment demonstrating integration into that community. It is a lengthy duration and was settled, stable accommodation;
A established business in Spain;
He held bank accounts in Spain not in the United Kingdom. His finances were operated from those accounts;
He received health care in Spain. His medical notes from E Hospital record that he ‘lives in Spain’;
He obtained residency in Spain;
It is clear A chose to live and make his life in Spain;
A played no part in the decision to move him to Wales. I accept he did not understand he was moving permanently to Wales. It is accepted that he lacked the capacity at the time to make that decision. At all times since he moved to Spain and had capacity to decide, it was A’s settled intention to reside and make his home there;
It was not his decision to leave Spain and move to D. He was taken there;
There is much objective evidence from the records and evidence from his litigation friend that he wished to return to Spain;
Subjectively the evidence is overwhelming that A was settled in Spain and wished to live there.
I accept that B and C had no lawful authority to move A to Wales. He had refused to sign a lasting power of attorney in Spain which indicates he objected to others making decisions about him. His permanent removal from Spain was likely to be contrary to his wishes.
B and C did not act in bad faith. However, options for care in an area wider than the immediate locality in which B and A lived in Spain were not explored.
I therefore find that A remains habitually resident in Spain.
I have been greatly assisted by the assistance the parties and Counsel in particular have provided the court. There is obviously a practical and constructive approach being taken to address the issues that arise as a result of this decision. I will consider a draft order at the time of the handing down of this judgment as to the next steps. I accept that there are potentially significant and complex issues of law and policy which are likely to be engaged and that consideration should be given to the appropriate Tier of judiciary to which this case should be allocated in future.
I am satisfied that para 7(1)(d) MCA supra, empowers the court to take necessary measures to protect A. However, these are temporary and limited to England and Wales. I will make orders which reflect this situation for the interim protection of A.
HHJ RICHARD MILLER
10 JUNE 2025