Analysis
PO was 88 years of age and lacked capacity to decide where she should live. She had four children, the applicant (JO), and the first, second and third respondents (GO, RO and MP). GO and RO were PO’s attorneys for property and affairs but no power of attorney or deputyship order was extant for welfare decisions.
Until the events giving rise to this application PO was habitually resident in England and Wales, living in her own property in Worcestershire with family and local authority assistance. However, in April 2012, GO moved PO to Scotland, initially to live with him but shortly after to reside in a residential care home under the responsibility of Inverclyde Council. On the basis of urgency the Sheriff Court accepted and thereafter exercised its jurisdiction by virtue of the Adults with Incapacity (Scotland) Act 2000, making an interim welfare guardianship order in July 2012 (appointing Inverclyde Council’s chief social worker) and confirming this guardianship order and extending it for three years in December 2012.
JO applied to the Court of Protection in November 2012. By this application she sought an order for the return of PO to England and Wales. Inverclyde Council made a cross-application under r87 of the Court of Protection Rules 2007 for a declaration that the court had no jurisdiction to hear JO’s application, as PO was no longer habitually resident in England and Wales, or, alternatively, an order declining to exercise any jurisdiction it had over PO or her property. GO, RO and MP supported the council’s position.
On 26 June 2013 Senior Judge Lush dismissed JO’s further application to restrain the sale of PO’s house in Worcestershire. At the final hearing of her residency application, JO renewed her application to restrain the sale of PO’s property.
Held (dismissing JO’s applications):
(1) PO was not for the following reasons habitually resident in England and Wales at the date of the hearing (July 2013):
this was far from a case of adult kidnapping as considered in Re HM [2010] EWHC 870 (Fam) or Re MN [2010] WTLR 1355; (ii) over a year had elapsed since PO first arrived in Scotland; (iii) PO was settled in her care home and seemingly content there; and (iv) PO was not expressing a desire to return either to her own home or to England and Wales more generally.
Moreover, GO, RO and MP had authority, conferred by the doctrine of necessity, to move PO to Scotland. Accordingly, the court did not have jurisdiction under para 7(1)(a) of Sch 3 to the Mental Capacity Act 2005.
Scotland was for the following reasons the forum conveniens and there were no special circumstances requiring the Court of Protection to nonetheless assume jurisdiction: questions relating to PO’s welfare had been and were being determined by the Sheriff Court and it was not in her best interest for the matters in dispute to be litigated in multiple jurisdictions; (ii) no English local authority considered that it had responsibility for PO; (iii) most of the witnesses relevant to JO’s disputes were in Scotland; and (iv) all the matters in dispute had the most real and substantial connection with Scotland.
Accordingly, the court declined to exercise its jurisdiction under para 7(1)(b) of Sch 3 to the Mental Capacity Act 2005.
On the same reasoning the court declined to exercise its jurisdiction under para 7(1)(b) to restrain sale of PO’s property in Worcestershire. The president gave the following general guidance on habitual residence: Habitual residence is a question of fact to be determined in all the circumstances of the particular case and can be lost or altered on one day.
(b) In the context of an adult who lacks capacity to decide where to live, habitual residence may be lost and another habitual residence acquired without the need of a court order or other formal process.
The ‘doctrine of necessity’ (requiring a decision taken by a relative or carer which is reasonable, arrived at in good faith and taken in the best interests of the assisted person) applies to this scenario as to other contexts, but is not a licence to be irresponsible and will not apply where there is bad faith or where what is done is unreasonable or not in the best interests of the assisted person. The president gave the following general guidance on the court’s discretion whether or not to exercise its jurisdiction: Nothing in the Court of Protection Rules or other statutes or instruments circumscribes the Court of Protection’s ability to apply the doctrine of forum non conveniens. By parity of reasoning (between cases involving children and those involving incapacitated adults) this doctrine may be applied on the principles propounded in Spiliada Maritime Corp v Casulex Ltd [1987] AC 460, ie on a determination of whether there is some other forum which is clearly more appropriate and, if there is, whether there are nevertheless special circumstances requiring the case to proceed in England and Wales. When the Court of Protection considers a question of forum conveniens or forum non conveniens it is not deciding what should be done ‘for and on behalf of’ P, but merely which court should make those decisions. Accordingly, s1(5) of the Mental Capacity Act 2005 is not operative.
JUDGMENT SIR JAMES MUNBY: [1] PO, who is some 88 years of age, is the mother of four children: the applicant JO, her brothers GO and RO and her sister MP. It is common ground that PO lacks capacity to decide where to live. It is also common ground that, until the events which have …Continue reading "Re Po; Jo v Go & ors [2013] EWHC 3932 (COP)"