AB and XS (P, by her litigation friend the Official Solicitor)

Summary

This case concerned XS – a 76 year old UK-Lebanese dual national – then resident  in Lebanon.  The applicant was her cousin AB, who wished XS to return to the UK.  Lieven J had to decide whether it was in the best interests of XS, who had been diagnosed with Alzheimer's disease in 2013, to return to the UK six years after she had moved abroad to Lebanon. The application was opposed by XS's nephews in the UK.

Habitual Residence

Lieven J firstly had to decide whether she had jurisdiction on the basis that XS was based abroad.  She directed herself by reference to s.63 MCA 2005 which states:

"63. International protection of adults

Schedule 3 –

(a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and

(b) makes related provisions as to the private international law of England and Wales.

Relevant provisions for the determination of jurisdiction in this case from Schedule 3 include:

7.

(1) The court may exercise its function under this Act (in so far as it cannot otherwise do so) in relation to –

(a) an adult habitually resident in England and Wales,

(b) an adult's property in England and Wales,

(c) an adult present in England and Wales or who has property there, if the matter is urgent, or

(d) an adult present in England and Wales, if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to him. (emphasis added)

Lieven J reviewed the case-law on habitual residence (at paragraphs 22-5), and considered that the critical question was XS was now integrated into society in Lebanon (see paragraph 29).  Lieven J  considered that XS was habitually resident there on the basis of the evidence that:

28. […] she has now stayed for 7 years and is physically integrated into the nursing home and with the staff there. Her medical and therapeutic needs are being met in Beirut, and it has undoubtedly become her home. It is of some relevance that XS was born in Lebanon and has Lebanese citizenship, although on the facts of the case these are probably less weighty factors.

Lieven J found that it followed that XS was habitually resident in Lebanon and, as a Court of Protection judge, she had no power under the MCA to make a return order.

The Inherent Jurisdiction

The second issue that the Lieven J had to consider in light of her conclusion above was whether she had could or should exercise her powers as a High Court judge under the inherent jurisdiction to order XS's return to the UK. In determining whether it would be appropriate to exercise the inherent jurisdiction Lieven J reviewed the case law, and in particular the decision in Re QD (Jurisdiction: Habitual Residence) [2019] EWCOP 56 where Cobb J declined to exercise the inherent jurisdiction in somewhat similar circumstances.

At paragraph 35, Lieven J concluded that it would be:

 

plainly inappropriate to exercise the inherent jurisdiction to make an order to return XS to England because it would cut across the statutory scheme for no principled reason. I have found that she is habitually resident in Lebanon, and therefore I cannot make an order for return under the MCA. However, the MCA has provisions in Schedule 3 for making welfare decisions in respect of incapacitated adults with an international dimension. To make such a welfare order under the inherent jurisdiction would be to cut across the carefully crafted statutory scheme applicable to precisely people in XS's situation, and as such would be a misuse of the inherent jurisdiction.

Lieven J accepted that the nature of the inherent jurisdiction that meant that each case always needed to be considered on its own particular facts, and the court must always retain a element of flexibility.  However, in this instance, she was clear that "this case falls quite clearly on the wrong side of the line in relation to cutting across a statutory scheme" (paragraph 37).

Best Interests

Although, strictly, she did not need to do so in light of her conclusions above, Lieven J analysed, separately, whether it would be in XS's best interests to return to England and Wales.   She noted that the evidence from the specialist geriatric psychiatrist showed that XS was very frail, was in the advanced stages of dementia and could die at any time.   She also considered (paragraph 39) that XS was familiar with her environment and carers in Lebanon with the resulting risk that to bring her to the UK would be "extremely disruptive". The limits of the benefits of any such move were set out at paragraph 40 – with the evidence suggesting that "she will be wholly unaware of the fact that she has moved to England and will not know either the Applicant or any of the other people she knew in England."

In conclusion, and in finding it would not be in XS's best interests to return to the UK, Lieven J stated as follows:

Taking all these factors together, my view is that XS's best interests are served by her remaining in Lebanon and spending her days there. In reaching this conclusion I fully take into account the strong views of the Applicant and GH that XS would have wished to return to the UK. However, I have to judge the situation as it is now, and what is in XS's interests now.

Comment

The case shows that a clear justification is required for cutting across the statutory regime of the Mental Capacity Act 2005 by invoking the inherent jurisdiction.  It is perhaps of note that Lieven J felt it necessary to give specific – independent – consideration to XS's best interests notwithstanding the fact that she had reached a conclusion that she would not intervene on jurisdictional grounds.  Even though not referred to the judgment, Lieven J was no doubt aware that Peter Jackson J (as he was then was) had accepted in Re Clarke [2016] EWCOP 46 that the High Court's nationality-based inherent jurisdiction existed in relation to those lacking the relevant decision-making capacity.   Further, given her conclusions as to XR's habitual residence, it must logically have been the position that all of the previous directions in the case (for instance the instruction of the geriatric psychiatrist) were made under the High Court's inherent jurisdiction.  There is, perhaps, no disconnect, though: directions made to enable examination of the position and informing the court of the position were not cutting across the grain of the MCA; in XR's case, Lieven J considered that granting substantive relief requiring her return would be a step too far.   The position might have been different, however, if Lieven J had been persuaded that XR's best interests in fact dictated a return home – at that point, it would be logical to see the use of the inherent jurisdiction as plugging a protection gap.