Court of Protection – Jurisdiction – Applicant being daughter of elderly woman – Sibling moving mother from England and Wales to Scotland – Applicant applying for return of mother to England

JO v GO and others: Court of Protection: 13 December 2013

The applicant was the daughter of an 88-year-old lady (P). The applicant had three siblings (GO, RO and MP). Prior to April 2012, P was habitually resident in England and Wales, living in her own house with a mixture of family and other support and care. GO and RO were P’s financial attorneys under an enduring power of attorney. In April 2012, GO moved P to Scotland, initially to his own house but, quite shortly after, to a care home located within the responsibility of the respondent local authority (the authority). The authority applied to the Sheriff Court for a welfare guardianship order under the Adults with Incapacity (Scotland) Act 2000 (the 2000 act).

The application was made on the basis that, although P was not habitually resident in Scotland, she was present there and it was urgent that the application be dealt with. On that basis, the Scottish courts had jurisdiction by virtue of paragraph 1(c) of schedule 3 to the 2000 act. The Sheriff made a welfare guardianship order appointing the authority’s chief social work officer as P’s welfare guardian with powers in relation to her personal welfare.

The instant proceedings were commenced by the applicant seeking an order from the Court of Protection for the return of P to the instant jurisdiction. The authority responded with an application under rule 87 of the Court of Protection Rules 2007, SI 2007/1744 (the rules), for a declaration that the Court of Protection had no jurisdiction to hear the applicant’s application, P being no longer habitually resident in England and Wales. Alternatively, the authority submitted that the Court of Protection ought to decline to exercise any jurisdiction it might have had.

On the issue of whether P was habitually resident in Scotland, for the purposes of paragraph 7(1)(c) of schedule 7 to the Mental Capacity Act 2005 (the 2005 act), the authority submitted that, whatever might have been the position when P first arrived in Scotland, P had since become habitually resident in Scotland; the instant case had not been one of adult kidnapping, significant time had elapsed since P had first arrived in Scotland, and P was settled in her care home.

The applicant submitted that the instant case had been one of wrongful removal and, in any event, P was not sufficiently settled in Scotland as to be habitually resident there. On the issue of discretion, the authority submitted that Scotland was clearly the more appropriate forum and there were no special circumstances pointing in favour of England and Wales. The applicant submitted that the Sheriff had, hitherto, been exercising jurisdiction on the basis of P’s presence and urgency rather than habitual residence. Consideration was given to sections 4 and 5 of the 2005 act.

The application would be dismissed.

(1) Habitual residence was, in essence, a question of fact to be determined having regard to all the circumstances of the particular case. Habitual residence could in principle be lost and another habitual residence acquired on the same day. In the case of an adult who lacked the capacity to decide where to live, habitual residence could, 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. In that case, as in other contexts, the doctrine of necessity applied.

Put shortly, what the doctrine of necessity required was a decision taken by a relative or carer which was reasonable, arrived at in good faith and taken in the best interests of the assisted person. There was nothing in the 2005 act to displace that approach. Sections 4 and 5 of the 2005 act pre-supposed that such actions were not unlawful, per se; they merely, though importantly, elaborated what had to be done and they provided, if certain conditions were satisfied, a statutory defence against liability (see [17], [18] of the judgment).

In the instant case, there had been no kidnapping. There had not been some high-handed action undertaken for some ulterior motive. On the contrary, it had been something reasonably and sensibly undertaken by, or in agreement with, three of P’s four children in what they had seen as her best interests. They had had authority, which was the authority conferred on them by the doctrine of necessity, to act as they had, and the fact that the applicant was of a different opinion had not robbed them of that authority. In addition, P had been in Scotland for some time and had settled in her care home. In all the circumstances, she was not habitually resident in England and Wales (see [26], [27] of the judgment).

Accordingly, the Court of Protection had no jurisdiction under paragraph 7(1)(a) of schedule 7 to the 2005 act (see [28] of the judgment).

F v West Berkshire Health Authority (Mental Health Act Commission intervening) [1989] 2 All ER 545 applied; G v E (by his Litigation Friend, the Official Solicitor), Manchester City Council v F [2010] EWHC 2512 (COP) applied; A (children) (jurisdiction: return of child), Re [2013] All ER (D) 66 (Sep) applied; ZH (by his litigation friend) v Metropolitan Police Commissioner [2012] All ER (D) 134 (Mar) approved; R (on the application of Cornwall Council) v Secretary of State for Health [2013] All ER (D) 01 (Jan) approved.

(2) There was nothing, either in rule 87 of the rules or elsewhere, which either expressly or implicitly circumscribed the ability of the Court of Protection to apply the doctrine of forum non conveniens. On the contrary, rule 87 of the rules was plainly apt to enable the Court of Protection to decline to exercise jurisdiction in an appropriate case on the ground of forum non conveniens. In determining how to exercise its discretion under rule 87(1)(b) of the rules, the Court of Protection was not required to treat the individual’s best interests as determinative. When the Court of Protection was considering a question of forum conveniens, or forum non conveniens, it was, fundamentally, deciding not what should be done ‘for and on behalf of’ the individual concerned, it was deciding only which court should make those decisions (see [29], [33], [34] of the judgment).

In the instant case, Scotland was the forum conveniens and there were no special circumstances requiring the Court of Protection nonetheless to assume jurisdiction (see [38] of the judgment).

Therefore, the court would decline to exercise jurisdiction under paragraph 7(1)(b) of schedule 7 to the 2005 act. In the circumstances, an order, pursuant to rule 87(1)(a) of the rules, would be made (see [39], [40] of the judgment).

Spiliada Maritime Corpn v Cansulex Ltd, The Spiliada [1986] 3 All ER 843 applied.

Claire van Overdijk for the applicant; Alex Ruck Keene for the authority; GO and MP appeared in person; RO did not appear and was not represented.