Case Summary: In the matter of Mrs Ann Clarke [2016] EWCOP 46

Court of Protection case summary

21/02/2017

The Court of Protection or the Inherent Jurisdiction of the High Court -  Does the Court have a role in relation to the welfare of a vulnerable and incapacitated British citizen even if that individual may not be habitually resident in England or Wales? 

 

Case

In the matter of Mrs Ann Clarke [2016] EWCOP 46

Topics

  • Court of Protection
  • Inherent Jurisdiction of the High Court
  • Personal Welfare & Property
  • Jurisdiction of the Court

Practical Impact

The High Court exercising its inherent jurisdiction has the ability to make orders for the protection of vulnerable and incapacitated individuals on the basis of their British citizenship.  As such the Court has jurisdiction in relation to an individual's welfare under the inherent jurisdiction, irrespective of whether or not it possesses it in the Court of Protection.

Summary

 

An individual may not be habitually resident in England and Wales and therefore may not be subject to the jurisdiction of the Court of Protection.  However, the Court concluded that even if that individual is not habitually resident in England or Wales, the High Court still has jurisdiction to make orders for the protection of vulnerable and incapacitated individuals on the basis of that individual's British Citizenship. Therefore the inherent jurisdiction of the High Court may be the most appropriate vehicle for dealing with this matter.

Background

The proceedings concern Mrs Ann Clarke who is 76 years old.  They have been brought in the Court of Protection by two of Mrs Clarke's children (Angela Wilde and Kevin Clarke) representing themselves.  The other party to proceedings is Mr Michael Clarke who did not attend the hearing, although the Court was satisfied that he was aware of those proceedings.

Mrs Wilde and Mr Kevin Clarke sought orders, firstly that their Mother should be brought back to the UK from Spain (where she is currently believed to be).  There is a serious family dispute concerning Mrs Clarke's welfare.  Mrs Wilde and Mr Kevin Clarke believe she should be cared for in England.  Her other son, Mr Michael Clarke is determined to keep her abroad and care for her there. 

Secondly Mrs Wilde and Mr Kevin Clarke sought an order that they be allowed access to Mrs Clarke's property in Blackpool to enable them to sort out that property and prevent it from deteriorating.   

The Court had taken a number of steps to try to de-escalate the situation in connection with proceedings, including suspending a committal order made by another Court in respect of Mr Michael Clarke to allow him to engage with proceedings, but he did not do so.

The Court asked the Official Solicitor by order dated 9 May 2016 to look into Mrs Clarke's situation.

The matter is further complicated by an indication from Mr Michael Clarke that he wishes to take his Mother from Spain back to Thailand with a view to spending three months or so there.  It is suggested that between September 2015 and February 2016 when Mr Michael Clarke last took his Mother to Thailand, Mrs Clarke returned in a very poor physical state, requiring hospital treatment in Spain.
Key Findings

The Court of Protection needed to decide whether it had jurisdiction over Mrs Clarke's Blackpool property.  The Court concluded that "there is no doubt because her property is in Blackpool, that it (the Court of Protection) has jurisdiction over that property".  At the date of the hearing the property was unable to be sold due to a previous order of the Court and the Official Solicitor had also placed a charge on it.  The Court did not determine any order with regards to access to the property at the current hearing.

As regards to whether the Court of Protection could exercise its jurisdiction in relation to Mrs Clarke's personal welfare; in order for the Court to exercise this jurisdiction, Mrs Clarke must be habitually resident in England and Wales.  It is clear that since 2008 Mrs Clarke had spent the majority of her time outside England, returning from time to time.  She has, for the most part been living in Spain, and has, on at least one occasion left there.  The Court was unclear whether Mrs Clarke is habitually resident in Spain, and it is this which the Court wished to learn through the enquiries of the Official Solicitor.  No final conclusion could be reached at the time of the current hearing although it is likely that Mrs Clarke is unlikely to be deemed habitually resident in England and Wales.

However, the Court indicated that Mrs Clarke is a very vulnerable person and she does likely lack capacity in relation to the issues before the Court.  The High Court, exercising its inherent jurisdiction has the ability to make orders for the protection of vulnerable or incapacitated individuals on the basis of their British citizenship.  Mrs Clarke is not beyond the protection of the Court this being the High Court exercising its inherent jurisdiction.  Proceedings do not therefore come to an end on jurisdictional grounds.

The outcome of the hearing was that "the Court has jurisdiction in relation to Mrs Clarke's welfare under the inherent jurisdiction (of the High Court), whether or not it possesses that jurisdiction in the Court of Protection".

This matter is ongoing and will be reconsidered by the Court on receipt of further reports produced by the Official Solicitor.

 

Please contact Jane Bennett if you wish to discuss this case or any related topics further. 

Bevan Brittan's Clinical Risk Team have prepared a comprehensive Knowledge Pack which offers guidance to commissioners, providers and care co-ordinators on the use of CCTV. The Pack is aimed at care environments with service users who lack capacity to consent to their care regime.

Please contact Hannah Taylor if you would like to receive the Knowledge Pack or wish to discuss the Use of CCTV in Care Packages any further.

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