How do you determine where P is “habitually resident”?
In this case the Court of Protection had to decide whether P was habitually resident in the UK or Ireland. The Court concluded that P was habitually resident in Ireland.
Determining “habitual residence”
- In some circumstances, whether the Court of Protection has jurisdiction over a P will depend upon their “habitual residence”. There’s no statutory definition of “habitual residence” in this context, but there is guidance that can be drawn from a series of cases.
- It is not always easy to determine where someone is “habitually resident” and in every case, it will very much depend upon the facts and the circumstances. Some questions which might be helpful to ask include:
- Does the presumption that P has/d capacity to decide to move country apply or has it been sufficiently rebutted?
- Was the decision to move taken under “unreasonable pressure” from another?
- A relationship of dependence between a vulnerable person and their carer is not necessarily an indication of “unreasonable pressure” – it can be entirely common and understandable
- The weight of a particular consideration, to be weighed in the balance to make the decision, is a matter for the person – what was the most important consideration for the person (even if it is objectively an unwise or unusual one)?
- Where the move has been effected or facilitated by another person, was it “wrongful” on the part of the other person?
- Was the move done in stealth or were there attempts to conceal it?
- Was the move overly hasty?
- Were concerns about a person’s influence on P sufficient, at the time, to warrant involving statutory agencies?
- Could the person’s actions, which are objectively improper, be characterised as incompetence and a failure to understand their duties as opposed to a malicious intent?
- Is P is settled in the new place and seemingly content to stay there?
- Always ensure that all issues, which might potentially have implications for the Court’s jurisdiction and the welfare of the vulnerable and incapactious person, are resolved before applying to conclude proceedings.
For further information about this case, please contact Jennifer Nwachukwu, Solicitor.
You can read the full case summary below.
- Mental Capacity
- Inherent Jurisdiction
- Habitual residence
Mrs Justice Knowles
IM, a 92 year old lady, resided in a care home in Ireland where she had lived since January 2019. IM moved to Ireland with her grandson (VS) in September 2018. Prior to the move she lived with VS in Kent. IM had been resident in Kent for over 55 years. VS had lived with IM for around 15 years.
The reason that IM’s “habitual residence” was before the Court for determination was because if she was habitually resident in Ireland, determinations about her health and welfare would fall to the High Court in Ireland, whereas if she was habitually resident in England, those decisions would fall to the Court of Protection.
There were conflicting accounts of IM's relationship with VS. VS’s sister (NS) described it as “a toxic and abusive relationship”, and alleged a number of instances of financial and emotional abuse. None of these allegations were put to VS who didn’t file any evidence in these Court proceedings. Another relative, FS, described VS as doting on and worrying about his grandmother.
In May 2017 Lasting Powers of Attorney for Property and Affairs and for Health and Welfare (the "LPAs") were executed in favour of VS and his then partner. The LPAs were registered in July 2017. In July 2018, a partial deed of revocation removed VS’s former partner, leaving VS as sole attorney. IM instructed a solicitor to act in those matters and there were no concerns raised as to her capacity.
In May 2017 IM was referred to her local memory clinic due to concerns about cognitive deterioration, but there was no further reference to any follow-up action to that referral. Between November 2017 – August 2018, IM had a number of interactions with various health and social care services, with no records indicating any concerns about her mental health, capacity or cognition (save for May 2018 when IM had frequent UTIs and was struggling to manage her medications due to confusion).
In Spring-Summer 2018, IM told relatives about her move to Ireland with VS. IM told her GP about a proposed move to Ireland on two occasions. The GP recorded that IM was stressed and emotional and did not want to move to Ireland. However, he raised no concerns that IM lacked capacity to decide to move.
In September 2018, IM's home was sold by VS (solicitors acting for VS confirmed to the OPG subsequently that “everything was done legally and above board”). It transpired that IM had moved to Ireland with VS in September 2018; although none of her family or friends were aware of this. NS reported IM's disappearance to the police and wrote to the Office of the Public Guardian (the “OPG”) which commenced an investigation into possible financial abuse of IM. Kent County Council also raised a safeguarding alert with the OPG as IM had not been registered with a new GP (so may not have been getting her medication) and her post was re-directed to VS’s then partner’s house.
IM was admitted to a care home in Ireland for respite care in November 2018, was discharged home with VS in December 2018 (and VS engaged a carer), but was re-admitted in January 2019 from hospital. The new GP visited IM in the care home – no concerns were raised about her residence/care arrangement; VS and his partner were visiting along with the carer. There were periods of confusion noted in IM’s records from the care home.
Following its investigation, the OPG issued Court of Protection proceedings seeking to revoke the LPAs granted in favour of VS. VS renounced his appointment as IM's attorney for both LPAs. Although no findings were made against VS in those
proceedings, Mrs Justice Knowles considered that the evidence pointed to VS having failed to manage IM’s funds properly. Those proceedings concluded on 18 November 2019 when the Court appointed a deputy for IM's property and affairs. VS reimbursed the proceeds from the sale and transferred IM’s funds to the deputy.
In those earlier Court of Protection proceedings, the Health Service Executive of Ireland (the "HSEI”) had raised concerns about IM’s welfare and proposed that a deputy should also be appointed for IM’s health and welfare. It filed reports with the Court on 22 November 2019 outlining its view that IM should return to England. The HSEI had been invited to attend the hearing that had been due to take place on 25 November 2019. One of the issues to be addressed at that hearing was IM's habitual residence. However, when the OPG applied to withdraw the proceedings on 12 November 2019, the Court decided the case on the papers and vacated the hearing on 25 November 2019 without apparent reference to the HSEI's concerns or the earlier direction that IM's habitual residence remained in issue.
As the HSEI was concerned that welfare issues relating to IM had not been resolved, it made an application for the appointment of a personal welfare deputy for IM.
IM’s views about her residence and care arrangements to the Official Solicitor were contradictory on the different occasions they were discussed. VS’s contact with IM during the C-19 pandemic had been by 3x telephone calls; NS had not called IM as she couldn’t afford the international calls.
The HSEI submitted that IM remained “habitually resident” in England; although IM was capable of taking the decision to move to Ireland, this was a decision taken under the pressure and influence of VS, whose motives were “wrongful” (with the collateral purpose to obtain the proceeds of the sale of IM’s home) .
The local authority and the Official Solicitor submitted that IM was now habitually resident in Ireland; whilst there was some evidence of cognitive decline prior to IM's move to Ireland, this was insufficient to rebut the presumption of capacity and there was insufficient evidence for the Court to find that IM was subject to coercion and undue influence by VS such that the move was not wholly voluntary on her part. IM had lived in Ireland for 2 years, was settled at the care home and was content to stay there.
Mrs Justice Knowles found that IM was now habitually resident in Ireland:
- IM had capacity to decide to move to Ireland:
- Larger body of evidence suggesting that she had capacity
- Evidence sufficient to rebut the presumption of capacity didn’t emerge consistently until after the move – she now lacks capacity to make decisions about her residence
- Unpersuaded that IM was “unreasonably pressured” to decide to move by VS:
- the relationship of dependency between an elderly vulnerable person and their carer is entirely common and understandable;
- for IM, the most important consideration would have ben that she would continue to live with VS who would look after her as he had for many years
- the move to Ireland was not done in stealth or in an overly hasty manor – VS hadn’t attempted to conceal it
- no one was sufficiently concerned about IM prior to the move to Ireland to involve the statutory agencies
- not persuaded that the desire to enrich himself at IM’s expense was the sole justification for VS’s move to Ireland
- the concerns noted about VS’s dealings with IM’s money may be characterised by incompetence and failure to understand his duties as an LPA for property and affairs
- IM was now settled and content living in a care home in Ireland.
The HSEI requested that the Court exercise its inherent jurisdiction, as IM had British citizenship and her property had been in England; the Judge declined to do so. The HSEI confirmed that it would bring proceedings in the Irish High Court as to IM’s welfare.
Other Key Findings
Mrs Justice Knowles provided a helpful summary of the Court of Protection’s jurisdiction on cross-border matters:
- “Habitual residence” isn’t defined in the Mental Capacity Act 2005 or the Hague Convention – it is to be determined in accordance with the guidance from the Supreme Court and the Court of Justice of the European Union in a number of recent cases:
- It is a question of fact; not a legal concept such as “domicile”
- “the place which reflects some degree of integration by the child in a social and family environment”
- Physical presence which is not temporary or intermittent
- Consider the conditions and reasons for the child’s stay in the state in question
- Both objective and subjective factors are to be considered
- Not the person’s wishes or intentions – but the reasons why a person is in a particular place and their perception of the situation while there
- The stability of the residence is important, not whether it is of a permanent character
- If a person leaves their home country with the intention of emigrating and having made the necessary plans to do so, they may lose habitual residence quickly and gain a new one quickly;
- If a person leaves their home country for a temporary purpose or in ambiguous circumstances, they may not lose their habitual residence for some time
- A person may lose one habitual residence without gaining another
- Where an incapacitous adult moves, the question of the authority of the person effecting the move is important – a “wrongful” move doesn’t change habitual residence; you look to the authority of the person effecting the move and their motives – there has to be a “reasonable belief” that they were acting in the incapacitous person’s best interests
Mrs Justice Knowles refused to exercise the inherent jurisdiction with respect to IM for the following reasons:
- It would constitute a subversion of the comprehensive regime available in the MCA for those who lack capacity to make decisions about welfare, property and other matters.
- It would improperly reserve to the English Court decisions about IM's welfare when there is a robust and appropriate jurisdictional framework in Ireland for taking such decisions about a person who is habitually resident there.
Mrs Justice Knowles advised that care should be taken in concluding proceedings on paper where there are unresolved issues which might potentially have implications for the Court's jurisdiction and the welfare of a vulnerable and incapacitous person.