Case Summary: Re AB [2020] EWCOP 47

The case considers an application brought by the mother (M) of an adult child (AB), recently brought to the UK from the USA, who was discharged to residential care after receiving urgent medical treatment in an NHS hospital.  M’s application asked the Court of Protection to recognise Letters of Guardianship granted to her in the USA in respect of health and welfare decisions (as a foreign protective measure) and challenged the DoLS authorisation for the care home placement.

This case summary will be of interest to commissioners and local authorities who are faced with interpreting the authority of a foreign protective measure.

Practical Impact

Determining “habitual residence”

It is relevant to consider:

• The circumstances of arrival in the UK (including whether or not the move is a proper exercise of a legitimate power)
• The extent to which the individual has settled and integrated into the community – is it sufficient to effect a change to the status of ‘habitual residence’?

What is the Court of Protection’s remit for a person who is not habitually resident in England/Wales?

• Where an individual is deemed to be habitually resident abroad the Court of Protection is limited to exercising jurisdiction only over matters which are urgent or temporarily required to safeguard that individual whilst yielding jurisdiction to the overseas court.

Whether or not to recognise a foreign protective measure?

• Your starting point is to recognise a protective measure taken in relation to an adult under the law of a country other than England and Wales (that has a similar legal regime for incapacitated persons).
• There are circumstances where a foreign protective measure is not recognised (including, where it would be manifestly contrary to public policy).
• The motives of a person bringing an incapacitated person to the UK are relevant in determining whether or not to recognise the foreign protective measure.
• Whether a foreign protective measure should not be recognised is going to be very fact-specific to the individual case and, given the mandatory nature of the recognition of foreign protective measures, practitioners would be well advised to seek legal advice as to whether the Court’s determination is required.

What is the role of a person appointed under a foreign protective measure in the DoLS regime?

• If there is a person whose authority under a foreign protective measure is recognised under Schedule 3, they could fall within the “class of persons” to be considered as part of the “no refusals” requirement under the DoLS regime.
• You will need to give careful consideration to the specific facts of the case.

For further information about this case, please contact Sarah Clarke.

You can read the full case summary below.

Re AB [2020] EWCOP 47

Relevant Topics

• International Jurisdiction of COP (US/ UK Cross border issues relating to deputyships/guardianships)
• Habitual residence
• You will need to give careful consideration to the specific facts of the case.

Summary

AB is 22 years old and was born in the USA suffering brain injuries at birth. She has cerebral palsy, microcephaly, bilateral dislocated hips, scoliosis and visual impairments.  AB receives nutrition through a PEG feed.  She is non-verbal.  Her mother, M, is British, but moved to the USA in the 1970s.

AB and M lived together in the USA up until November 2019 when they arrived in the UK (on one-way tickets). At that time, the American authorities were investigating M’s ability to care for AB and were considering steps to have her “Letters of Guardianship” – akin to a deputyship under the MCA) revoked. There was an Order made in the USA that said AB was not to be removed from New York State where she was resident. Shortly after arriving in the UK, AB was taken to a London hospital for urgent care.  The hospital subsequently raised safeguarding concerns about M’s feeding practices.  Despite being medically fit for discharge on 18 December, AB remained at the hospital for a further 3 months because there was nowhere appropriate for her to be discharged to. AB and M had nowhere to live. On 9 March AB was discharged to a care home. Initially M resided there with her, however due to Covid-19 restrictions on visitors M was subsequently required to leave. M moved to accommodation provided to her following an application for assistance as a homeless person. AB remained at the care home and a DoLs standard authorisation was granted for 12 months.

M applied to the Court of Protection for recognition of the USA Letters of Guardianship (for M to make health and welfare decisions in respect of AB) and the immediate return of AB into her care. M also sought to challenge the DoLS standard authorisation for AB’s living arrangements at the care home under s.21A MCA.

The respondents (the Official Solicitor and the local authority) agreed that:

1. AB was habitually resident in the USA;
2. matters concerning her welfare were a matter for the USA courts in the first instance; and
3. the question of recognition of the Letters of Guardianship had to be determined first, before any determination about the s.21A challenges to the DoLS standard authorisation.

The Official Solicitor asked the Court to refuse to recognise the Letters of Guardianship (i.e. to disapply the mandatory recognition requirement under Schedule 3 MCA) on the grounds of public policy; more specifically the policy of ‘judicial comity’. The Official Solicitor submitted that as M knew that her care of AB was being investigated with the possibility of having the Letters of Guardianship discharged and she left the USA so as to avoid that possibility, then recognising the Letters of Guardianship would amount to failure of judicial comity with the New York Court. To give recognition to the Letters of Guardianship would endorse the “bad faith” of M in thwarting the USA court’s jurisdiction. In essence, it wasn’t that the Court of Protection shouldn’t recognise Letters of Guardianship from the USA per se; but that it shouldn’t recognise them in these circumstances. 

In her judgment, HHJ Hilder considered in detail Schedule 3 of the MCA (International Protection of Adults) and relevant case law to determine the issues of:

1. Where AB was habitually resident – the USA;
2. Whether to recognise the Letters of Guardianship – no, the mandatory recognition requirement was disapplied in these circumstances;
3. What M’s role is under the DoLS regime in light of the Letters of Guardianship – in particular, whether she fell within the ‘class of persons’ under schedule A1 MCA whose refusal would mean that the “no refusals” requirement was not met – a recognised foreign protective measure could fall within the “class of persons”, but in light of the Court’s disapplication of the recognition of M’s Letters of Guardianship, M did not.

The section 21A challenge against the standard authorisation for deprivation of liberty in respect at AB’s accommodation in the care home, on the grounds of it not being in AB’s best interests, was also dismissed.

The Court did not determine whether it had power to recognise a foreign protective measure and then immediately suspend it; that is a matter that will need to be determined by a different case.

It is open to M to make a further application for recognition of the Letters of Guardianship in light of any further decision by the USA court (i.e. if the Letters of Guardianship are considered by the USA court and not discharged).

Other Key Findings

Habitual Residence

• M’s decision to move her daughter to the UK had been taken “consciously in a bid to avoid its exercise” and therefore was not a proper exercise of legitimate power and not effective to change AB’s habitual residence which remained the USA.
• Since her arrival in the UK, AB’s circumstances had not been settled, such that her habitual residence should be changed by the passage of time (notwithstanding the bad faith in the arrangements for her arrival in the UK). Save for the care home, AB has no other appropriate accommodation in the UK and she had not integrated into the community beyond the care home placement.

Limited jurisdiction of COP

• As AB is habitually resident in the USA. the Court of Protection could only exercise its ‘full, original jurisdiction’ if the matter was urgent or if a protective measure which is ‘temporary and limited in its effect to England and Wales’ was proposed in relation to AB.
• There was no evidence of any immediate threat to life or safety and no immediate need for further protection, therefore the jurisdiction to determine wider welfare issues should be yielded to the courts in the USA.

Schedule 3 MCA (International Protection of Adults)

• Schedule 3 is mandatory in nature; i.e. it is a mandatory recognition requirement.
• Paragraph 19(1) of Schedule 3 is a requirement to “work with the grain of the order” of a country whose legal systems closely align to that of England and Wales.
• The USA court that had granted the Letters of Guardianship was “an experienced court with a sophisticated family and capacity system.”
• The decision not to recognise M’s Letters of Guardianship was not reflective of the merits of the Letters of Guardianship themselves, or the powers of the USA court to grant them – but a reflection of the circumstances in which the application for recognition of them comes to be determined by the Court of Protection (i.e. in light of the bad faith by M and the fact that the USA court was engaged with determining whether they should be discharged).

The DoLS Regime

• Paragraph 20 of Schedule A1 MCA recognises a “class of persons” whose refusal of the arrangements amounting to a DoL would mean the “no refusals” requirement is not met and the DoLS authorisation could not be granted.
• A “narrow interpretation” of Paragraph 20 would mean that only a donee of an LPA or a deputy within the meaning of the MCA would fall within the “class of persons” - this could be vulnerable to criticism of inconsistency with the mandatory nature of the recognition provisions.
• A person acting under the authority of a foreign protective measure recognised under Schedule 3, could fall within the “class of persons” when considering the “no refusals” requirement.
• Given that the Judge had dismissed M’s application to recognise the US letters of guardianship, it followed that M did not fall into a class of persons whose valid decision could mean that AB failed to meet the ‘no refusals’ requirement. Therefore the DoLs standard authorisation scheme was deemed appropriate for AB and M’s challenge to this standard authorisation was dismissed.