JM v Mr and Mrs T & Ors

These are proceedings brought under the inherent jurisdiction of the Family Division of the High Court of Justice in relation to an incapacitated adult, ST. ST is suffering from HIV AIDS. It is common ground, and I so find, that ST lacks the capacity to make decisions about his care, residence and contact with others. ST is very seriously ill and needs, and will for the remainder of his life go on needing, a high level of intensive medical, nursing and other more general care.

The proceedings were commenced on 1 September 2006 and have been before me on a number of occasions since then. Various investigations into ST’s medical condition and into his domestic, social and other circumstances have been carried out by various experts and agencies, in accordance with directions given by the court from time to time. Various other investigations have been carried out, again in accordance with directions given by the court from time to time, into the arrangements that would be made for ST to be cared for in Germany were I to decide that that is what is best for him.

It is right that I should place on record my grateful thanks for the very considerable assistance we have had from all the German authorities – medical, social welfare and legal authorities – to whom we have turned for assistance. Their willingly proffered help has been of the very greatest assistance to me, just as I am sure that it has been of the very greatest assistance to ST and the other parties.

If at times some of the inquiries which we have made of our German colleagues may have seemed unnecessary or inappropriate, I can only apologise. I can assure them, however, that the inquiries which we made of them merely reflect the kind of inquiries which we would make of similar agencies in this country. Insofar as technical inquiries were made about the nature of the proposed arrangements in Germany, I can assure our German colleagues that this did not reflect any lack of confidence in them but rather a lack of familiarity on our part with a system which in some respects is rather different from the one we are familiar with.

All these investigations have enabled the parties, and the court, to obtain a detailed insight both (a) into ST’s medical, social and welfare needs and (b) into how ST’s needs can best be met, whether in this country or in Germany. In the result, the outcome of the process has been the emergence of a consensus that ST’s interests are best served by him moving to live for the remainder of his life – in all probability the short remainder of his life – in Germany.

Having carefully considered all the expert reports and all the other evidence filed with the court, I, as the judge charged by English law with deciding all issues relating to ST’s medical, social and personal circumstances, have no doubt that his interests will indeed best be served by him moving to Germany as soon as possible.

It was in these circumstances, and being satisfied that the order I was invited to make was indeed in ST’s best interests, that I made the order dated 20 December 2006.

For the assistance of the German judicial, medical, social welfare and other authorities I should make it clear that the order is intended merely to set out the basis upon which I have arrived at my decision and the arrangements which are to be made for ST until the time when he arrives in Germany. My order is not, of course, intended in any way to bind the German authorities – either the judicial, medical, social welfare or other authorities. What is to be done for ST after he arrives in Germany is, so far as the English court is concerned, a matter within the exclusive competence of the relevant German authorities. It would be wholly wrong for me to seek in any way to interfere with decisions of the competent German authorities.

I have mentioned the fact that in some respects our system is rather different from the German system. Different, but not necessarily better. On the contrary, I have complete confidence that ST will in Germany receive care – medical, social and welfare care – at least as good as the care he would receive in this country, just as I have complete confidence in the German legal system and in my German judicial colleagues.

As I remarked during the course of the final hearing, Germany is one of the most civilised and advanced of the many countries within the European family of nations. German medicine has long had a deservedly world-wide reputation. Moreover, decades before this country had even the beginnings of a welfare state, let alone the National Health Service, the Germany of Chancellor Bismarck had a system of social welfare which led and was indeed the wonder and envy of the whole world.

We live in a constantly shrinking world. English lawyers and other professionals must have – can have – every trust and confidence in their professional counterparts in the other equally advanced parts of Europe. We must avoid the temptation to think that our way is the best, let alone the only, way of doing things.

We are all members now of the European family of nations. This country and Germany are members of the European Union. We are both signatories to the European Convention for the Protection of Human Rights and Fundamental Freedoms. My assumption will always be that, in a case such as this, someone in ST’s position will receive at least the same standard of care in Germany (or, for that matter, in France, in any of the Benelux countries and in many other countries in Europe) as he would receive in this country. That is not something which, as it seems to me, needs to be proved. It is the assumption which the court can, and should, make unless and until the contrary is established. It is certainly the assumption that I would make.