View source for ICLR (2022) WLR(D) 26

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[2022] WLR(D) 26

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Court of Protection

AB v XS

[2021] EWCOP 57

2021 Oct 7; 29

Lieven J
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''Mental disorder— Court of Protection— Jurisdiction— Habitual residence— Adult travelling abroad having expressed desire to visit family and friends— Adult losing capacity while abroad and placed in care home there— Application by family member for return of incapacitated adult— Whether incapacitated adult acquiring habitual residence outside United Kingdom absent capacity to “choose”— Whether court having power to make return order— Whether court able to exercise powers under inherent jurisdiction in alternative— Mental Capacity Act 2005 (c 9), Sch 3, para 7''

A Lebanese woman had lived in the United Kingdom for over 40 years before she was diagnosed with Alzheimer’s disease. Determinations were reached that she lacked capacity to make decision in respect of some issues but had capacity, inter alia, to enter into a lasting power of attorney. She expressed a desire to return to Lebanon to visit family and friends for a time, without committing to a permanent move, and travelled to Lebanon to move into a flat close to her brother. Upon her brother’s death 18 months later she was moved to a care home in Beirut where she remained for a further five years, it having become clear that she had lost capacity. Her cousin commenced proceedings under the Mental Capacity Act 2005 and the inherent jurisdiction of the High Court to relocate the incapacitated adult to the UK. There issue arose whether the incapacitated adult was habitually resident in England and Wales, as was required under paragraph 7 of Schedule 3 to the 2005 Act in order to found jurisdiction under that Act, and, if not, whether the court could or should proceed under the inherent jurisdiction.

On the family member’s application—

Held, application refused. (1) An analysis of the established authorities and the comparable case law relating to habitual residence in proceedings concerning children led to the conclusion that where an incapacitated person was moved from one country to another they could change their habitual residence once the requisite degree of integration was achieved, regardless of their inability to have exercised any decision-making in that choice, although the position might well be different if the person were removed unlawfully. In the case of an incapacitated adult who lost capacity after they left the original country, there was no equivalent of the “adult with parental responsibility”, as there was in cases concerning children, whose thoughts and intentions were relevant to the degree of integration in the new country. Therefore, an incapacitated adult who retained strong roots in the original country, such as a home and family, and who had expressed an unequivocal desire to return before they lost capacity, might remain habitually resident in the original country even after a prolonged stay in the new country. However, after a sufficiently long period in the new country, the sheer fact of physical integration would be likely to become overwhelming and habitual residence would move to the new country even if the individual had originally wished to return to their former country of habitual residence. Where the focus of the test was on integration rather than intention, the fact of physical integration was ultimately determinative. On the evidence in the present case, the incapacitated adult’s country of habitual residence was now Lebanon and the court therefore had no power under the Mental Capacity Act 2005 to make a return order (paras 26, 27, 28, 29).

An English Local Authority v SW [2015] COPLR 29, Ct of Protection and In re LC (Children) [2014] AC 1038, SC(E) applied.

(2) With due regard to the established authorities addressing the principled use and limitations of the inherent jurisdiction of the High Court, together with the provisions of the statutory scheme, this was a case where it would plainly be inappropriate to exercise the inherent jurisdiction to make a return order because it would cut across the statutory scheme for no principled reason. Although it remained necessary to consider each case on its own particular facts, and the court always retained an element of flexibility, the present case quite clearly fell on the wrong side of the line in relation to cutting across a statutory scheme (paras 32–34, 35, 36).

In re QD (Jurisdiction: Habitual Residence) [2020] COPLR 633, Ct of Protection and In re T (A Child) [2021] 3 WLR 643, SC(E) applied.

Parishil Patel QC (instructed by DWF Law LLP) for the family member.

John McKendrick QC and Alexander Ruck Keene (instructed by Mackintosh Law Ltd on behalf of the Official Solicitor) for the incapacitated adult.

<p align="right">Thomas Barnes, Solicitor</p>

Referenced Legislation

Mental Capacity Act 2005 (c 9), Sch 3, para 7