Naughty, naughty – breaching orders in the Court of Protection
Jun 6 2024
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This case considers a preliminary issue in relation to jurisdiction on habitual residence. The proceedings related to P who resided in Spain but was flown back to the UK by his son and daughter without P’s wife’s knowledge.
The Honourable Mr Justice Cobb in the Court of Protection
|In unusual (and contested) circumstances, the Court of Protection decided that whilst it had jurisdiction to determine capacity whilst a person was in England, it was right to defer best interests decision making to the Spanish Courts where the individual was habitually resident.
P resided in Spain for many years with his wife, prior to losing his capacity. In early September 2019, P’s son and daughter made the journey to Spain to bring P back to the United Kingdom without P’s wife knowledge or agreement.
Once P was returned to the United Kingdom, P’s son and daughter made an application to the Court of Protection to determine:
a. Whether P had capacity to make decisions about his residence, care and support needs;
P’s wife opposed the application and raised a preliminary issue, namely whether the Court had jurisdiction to determine the application at all or whether proceedings relating to P should be effectively stayed here pending transfer to Spain.
The preliminary issue was heard before his honourable Mr Justice Cobb in the Court of Protection. It was concluded by the Judge that, P lacked capacity to make decisions about his residence, care and support needs, within the definitions of the MCA 2005 and that P remained habitually a resident in Spain and therefore the Spanish authorities should determine the next course of action.
P is a man in his 60’s who suffers from Dementia in Alzheimer’s disease, which is connected with an atypical form of Parkinson’s disease, as a result of his diagnoses P has a significant cognitive impairment.
For several years, P and his second wife lived in Spain. In early September, P’s daughter and son made the journey to Spain and flew P back to the United Kingdom, without P’s wife’s knowledge.
The following day, P’s son and daughter made a joint application to seek a range of welfare Orders concerning P, in particular an Order that he reside at a care home in England, that he not return to Spain, and that he have only supervised contact with his wife. P’s wife, opposed this application and raised a preliminary issue:
a. whether the Court had jurisdiction to determine the application at all or whether proceedings relating to P should be effectively stayed here pending transfer to Spain.
P’s capacity was assessed by a Social Worker in September 2019 and it was concluded that P lacked capacity to make decisions about his care and contact. It was also the view of the Social Worker that P’s needs would be best met in a residential care home setting.
A Doctor was also commissioned by the parties to complete an assessment of P, the Doctor concluded that:
a. P has a diagnosis of Dementia in Alzheimer’s disease;
Mr Justice Cobb sitting as a Judge in the Court of Protection considered the preliminary issue on 19 December 2019
The Applicants argument was that while P was habitually resident in Spain until early September, and that he was now habitually resident in England, and that therefore the Court can apply the provisions of the Mental Capacity Act 2005 (“MCA 2005”) in the usual way. The Applicants also contends that the removal of P from Spain was not wrongful, but justified under the common law doctrine of necessity. The Applicants also raised that jurisdiction is established on the grounds of “urgency”.
From Court documents, it appeared that P’s wife made a petition for a declaration of incapacity in relation to P at the Spanish Courts in September 2019. The Spanish Courts accepted this petition and that it had jurisdiction and objective competence to hear this matter.
In light of the evidence provided including from the Doctor, Social Worker and P’s wife, the Judge concluded that P lacked capacity to make decisions about his residence, and his care and support needs, within the definitions of the MCA 2005 and that P remained habitually a resident in Spain. The Judge directed that P was to continue to remain at and be cared for at the Care Home and to continue the authorisation of the deprivation of his liberty there until such time as the national authorities in Spain have determine what should happen next.
The Judge also noted that it would not be appropriate to assume jurisdiction based on “urgency” and whilst decisions made in respect of P interests were needed to be made as soon as possible, the Judge considered that there was not any “urgency” about the need for substantive orders.
On this occasion, the Court considered that P remained habitually resident of Spain and that the Spanish Authorities should determine the next step. The Court considered that the following were prominent on this decision:
a. When P had capacity, he chose to live in Spain, and this was to have been his permanent home.
This article was written by Imogen Farmer, Paralegal. If you would like to discuss this topic in more detail please contact email@example.com.