Re DB; Re EC

Summary [1]

This decision concerns the habitual residence of two people placed by Scottish authorities in hospital in England.  For a Scottish perspective on the judgment, see the article by Adrian Ward in the August 2016 Scotland Newsletter.

DB and EC both had significant learning disabilities and required intensive care packages which engaged Article 5.  Both had been born and raised in Scotland, initially placed in a specialist hospital in England and detained under s.3 MHA 1983 but subsequently made subject to a standard authorisation under Schedule A1 MCA 2005. Both applied under s.21A MCA 2005 to challenge their detention in the hospital.  The parties did not dispute that the court had jurisdiction to determine a s.21A challenge regardless of whether the subject of the proceedings was habitually resident in England or Wales.  The issue for the court was whether it could determine the best interests of the men as regards their care and residence if they were habitually resident in Scotland. The English and Scottish authorities agreed that both men had acquired habitual residence in England.  The Official Solicitor for both men argued that they were habitually resident in Scotland.  The judge, Baker J, noted that the meaning of habitual residence under the MCA 2005 was the same as under family law statutes and instruments, and that applying the guidance provided by the courts in those areas, both men were habitually resident in England for the following reasons:

• They had been present in England for a substantial period of time (7.5 years in one case and 6 in the other);
• Although ultimately the plan was for both men to return to Scotland, their placement in England was understood to be indefinite, and would last until they were ready to return and a suitable placement was available;
• Although the men's lives had not been characterised by the degree of social or family integration enjoyed by most people, neither was able to integrate in a family or social environment anywhere in a conventional way as a result of their disabilities, and they had in fact achieved a degree of integration at the hospital.

This decision is a useful illustration of the application of the established principles in family law to habitual residence disputes involving adults.  Of particular significant is the court's conclusion that a person with significant learning disabilities could achieve a degree of integration in a hospital setting, having regard to the difficulties such a person would have in social integration in any setting, whether or not of an institutional nature.

Another interesting aspect of the case is the agreement by the parties concerned that the Court of Protection had jurisdiction to determine a s.21A application even if the person subject to the standard authorisation was not habitually resident in England or Wales.  The authors are aware of previous unreported cases in which it has been asserted that by virtue of paragraph 7 of Schedule 3 to the MCA 2005, the court does not have such jurisdiction.   In this case, the need to determine the habitual residence of DC and EB arose because, as part of the s.21A challenges, the court would be invited to determine substantive issues of capacity and best interests and make orders under ss.15 and 16 MCA 2005, and the court and the parties proceeded on the basis that such orders could only be made in respect of a person habitually resident in England or Wales by virtue of para 7 of Schedule 3.

The judgment does not examine whether there is an inconsistency between the court having jurisdiction under s.21A in respect of all people subject to standard authorisations, whether or not they are habitually resident in England and Wales, but its jurisdiction otherwise being limited by habitual residence. It remains the case therefore that there is no judicial explanation as to whether DOLS authorisations can in fact be granted in respect of people who are not habitually resident in England and Wales, and if so, why Schedule 3 does not prevent authorisations in respect of such people being challenged under s.21A.

[1] Alex now being instructed in this case, he has not contributed to this note.