JO v GO & Ors

Summary: PO, who was some 88 years of age, was the mother of four children: the applicant JO, her brothers GO and RO and her sister MP. She lacked capacity to decide where to live. She had been habitually resident in England and Wales, living in her own home in Worcestershire with a mixture of family and other support and care, in particular support from Worcestershire County Council which had been involved since 2009. In April 2012 PO's son, GO, moved her to Scotland, initially to his own house but quite shortly after to a care home located within the area of responsibility of Inverclyde Council. The Council became aware of PO and her circumstances early in May 2012. The Council applied to the Sheriff Court for a welfare guardianship order under the relevant provisions of the Adults with Incapacity (Scotland) Act 2000. The application was made on the basis that, although PO was not habitually resident in Scotland, she was present there and it was urgent that the application be dealt with, so that the Scottish courts had jurisdiction by virtue of paragraph 1(c) of Schedule 3 to the 2000 Act (the analogous English provision being paragraph 7(1)(c) of Schedule 3 to the MCA 2005). It is on that basis that the Sheriff Court accepted and has since exercised jurisdiction. An order was made in December 2012 appointing the Council PO's welfare guardian for a period of 3 years.

In the meantime, JO had made an application to the Court of Protection seeking a return of her mother to England and Wales. The Council responded by making and an application under Rule 87 of the Court of Protection Rules 2007 for a declaration that the Court of Protection has no jurisdiction to hear JO's application, PO being no longer habitually resident in England and Wales, alternatively declining to exercise any jurisdiction it may have. JO's three siblings supported the Council's stance. At a later stage, JO made a separate application seeking to restrain the sale of PO's house in Worcestershire, an application that was dismissed in the first instance by Senior Judge Lush.

JO's application and the Council's application were heard before the President. In a detailed judgment, he reviewed certain aspects of the 2000 Hague Convention on the International Protection Adults and of Schedule 3 to the MCA 2005, which seeks to implement (in rather curious fashion) the 2000 Convention. In summary, the President concluded as follows as regards the legal framework:

(1) Schedule 3 to the MCA 2005 is not entirely in force in England and Wales, because the Convention is not yet in force 'in accordance with Article 57' of the Convention (as the Government only ratified the Convention in respect of Scotland);

(2) Jurisdiction over personal welfare arises on the basis (ordinarily) on the basis of habitual residence; jurisdiction over property arises on the basis of the location of the property;

(3) Habitual residence is a question of fact to be determined having regard to all the circumstances of the particular case. Further:

1. Habitual residence can in principle be lost and another habitual residence acquired on the same day;
2. In the case of an adult who lacks the capacity to decide where to live, habitual residence can in principle be lost and another habitual residence acquired without the need for any court order or other formal process, such as the appointment of an attorney or deputy;
3. In deciding whether the actions taken by relatives or carers have led to a change in the habitual residence of P, the doctrine of necessity is relevant, which requires that the decisions taken by the relative or carer be reasonable, arrived at in good faith and taken in the best interests of the assisted person;
4. There will be no change in the habitual residence of the person if the removal from the jurisdiction has been wrongful (e.g. in the sort of circumstances that prevailed in Re MN [2010] EWHC 1926 (COP) – i.e. in contravention of the terms of an advance directive as to healthcare) or in breach of a court order)
5. It is permissible to take into account wishes and feelings and the extent to which the person is settled in deciding whether habitual residence has changed.

(4) The doctrine of perpetuatio fori does not apply when it comes to determining changes in habitual residence – i.e. the position falls to be considered as at the point of the hearing, not at the point of issue of the relevant application;

(5) The doctrine of forum non conveniens applies in the context of incapacitated adults as between England/Scotland in the same way as it would with children, and applying the Spiliada principles; it would also apply subject to the provisions of the Convention as and when ratified;

(6) A decision to refuse to exercise jurisdiction on the basis of forum non conveniens is not a decision falling within the scope of s.1(5) MCA 2005.

On the facts of the case, the President found that PO's habitual residence had changed between the time of her move in April 2012 and the hearing in July 2013. He therefore found that he had no jurisdiction to consider any application in relation to her personal welfare. Whilst he had jurisdiction to consider a renewed application brought by JO in respect of PO's property in Worcestershire, he made a declaration under Rule 87(1)(b) that he would not exercise such jurisdiction because the convenient forum for this issue was Scotland, being inextricably linked with the issues of her personal welfare which fell to be considered in Scotland.

Comment: This case is significant for a number of reasons, not the least of which being the clarification (somewhat amazingly, still required 6 years after the Act formally came into force) that not all of Schedule 3 is, in fact, in force. The relevant provisions that are yet to come into force are those which are, in essence, predicated upon England and Wales being a 'Convention country' in a position to undertake reciprocal arrangements with other Convention countries as regards transfers of jurisdiction.

Outside the further clarifications given as to the interpretation of Schedule 3 and, in particular, of 'habitual residence,' the decision is also relevant to practitioners who are not remotely concerned with cross-border issues. This is because of the exploration by the President as to the operation of s.4-5 MCA 2005 in the context of informal decision-making: a key question in determining whether PO's move to Scotland had been 'wrongful' concerned the motives of the family members in question. As the President noted, here – as in other contexts – the doctrine of necessity applied and "put shortly, what the doctrine of necessity requires is a decision taken by a relative or carer which is reasonable, arrived at in good faith and taken in the best interests of the assisted person. There is, in my judgment, nothing in the 2005 Act to displace this approach. Sections 4 and 5, after all, pre-suppose that such actions are not unlawful per se; they merely, though very importantly, elaborate what must be done and provide, if certain conditions are satisfied, a statutory defence against liability" (paragraph 18). At paragraph 20, Sir James Munby P noted that "[o]f course, the doctrine of necessity is not a licence to be irresponsible. It will not protect someone who is an officious busybody. And it will not apply where there is bad faith or where what is done is unreasonable or not in the best interests of the assisted person." As the President found, the authority that the three relevant family members required to move their mother to Scotland lay in the doctrine of necessity – and this was not negated by the fact that JO was of different opinion; nor did they require the concurrence or involvement of either potentially relevant statutory authority.

This approach therefore represents a strong endorsement of the requirement of reasonableness identified by the Court of Appeal in The Commissioner of Police for the Metropolis v ZH [2013] EWCA Civ 69. In that case, reasonableness dictated that the police take careful steps before intervening to take steps to remove an autistic man from by the side of a swimming pool; in PO's case, reasonableness did not prevent informal decision-making of the kind that occurs up and down the country day in day out.

Note: Permission to appeal this decision is being sought by JO. Alex continuing to be instructed by the Council, this comment appears on behalf of Michelle, Tor and Neil.