QD (Habitual Residence) (No.2)

In QD (Habitual Residence) (No.2) [2020] EWCOP 14, Cobb J gave a follow up judgment to that delivered in December 2019.  In that judgment, Cobb J decided that the move of QD from Spain to England had been a wrongful act perpetrated by his children, that he remained habitually resident in Spain, and that the Court of Protection should decline  primary jurisdiction in accordance with the provisions of Schedule 3 of the MCA 2005, and should yield to the jurisdiction of the Spanish Court.   Cobb J had agreed that he could exercise the limited jurisdiction available to him pursuant to Schedule 3, paragraph 7(1)(d), to make a 'protective measures' order which provided for QD to remain at and be cared for at the care home which he was living and to continue the authorisation of the deprivation of his liberty there only until such time as the national authorities in Spain have determined what should happen next.  Cobb J held that it was "for the Spanish administrative or judicial authorities to determine the next step, which may of course be to confer jurisdiction on the English courts to make the relevant decision(s)"

Following that decision, a Spanish lawyer (was instructed to advise on the process by which the Spanish Court could accept jurisdiction.   She made clear that the Spanish proceedings could not progress whilst QD remained in England.  As Cobb J noted, this gave rise to:

• something of a legal 'deadlock' has arisen; I have found that the English Court does not have primary jurisdiction in respect of QD, as he is not habitually resident here; this does not of itself give rise to an immediate obligation to return QD to Spain.    There is, currently, no order of the Spanish Court directing the return of QD which is capable of recognition and enforcement by the Court of Protection under MCA 2005 Schedule 3, paras 19 and 22.  It appears that the Spanish Court will not be able to exercise its primary jurisdiction to decide where QD should live (and whether he should return to Spain) unless QD is returned to Spain; the decision of whether he should be returned, how he should be returned, and when he should be returned, would primarily fall (unless it comes within Schedule 3, para.7(1)) to be to be considered by the Spanish Court. 

Cobb J had started to take steps to seek to break the deadlock when the COVID-19 pandemic swept Europe, such that, even if it were theoretically possible to order a return at the present time, to implement would be impractical, and to do so would clearly expose QD to an unacceptable risk of infection.

The Official Solicitor invited the court to make an 'in principle' best interest decision that he be urgently returned to Spain.  She was concerned that unless QD is returned to Spain, to enable the Spanish court to make the decision about QD's long-term residence, the Applicants' wrongful act would de facto be regularised by default.  She further accepts that the direction should be stayed pending the conclusion of the pandemic.

Cobb J held as follows:

17. In spite of its limited practical effect at this stage, I felt that I should pause to reflect on the decision, particularly given the quality of the submissions made on all sides.  While tempted to try to break the jurisdictional 'deadlock' at the moment, by making an 'in principle' best interests' decision, I have (somewhat reluctantly) reached the conclusion that I should simply adjourn the decision, and re-list this application for further review in three or four months' time.  I have so decided for the following reasons:
    i)I cannot in all conscience exercise a jurisdiction ("exercise its functions under this Act": Schedule 3 MCA 2005) based on 'urgency' under Schedule 3 para.7(1)(c), while at the same time adjourning the implementation of the order for an indefinite period, which is likely to be many months;  I have already decided (see [4](iv) above) that 'urgency' means "an immediate need" for the substantive order;  there would be an unacceptable dissonance between these outcomes;

    ii) point which did not arise at the hearing, but which has occurred to me while considering this judgment: I would like the parties to consider whether they feel that [the Spanish lawyer] has sufficiently covered the provision raised in Schedule 3, para.11 MCA 2005: "In exercising jurisdiction under this Schedule, the court may, if it thinks that the matter has a substantial connection with a country other than England and Wales, apply the law of that other country" (my emphasis by underlining);  in this regard, while I am advised that the Spanish Court would generally deploy its comprehensive legal framework with clearly prescribed 'best interests' criteria, specifically, how would the Spanish Court consider the issue of whether QD should return?  If the parties, or any of them, considers that Ms Garcia has not addressed this specific question, she should/could be asked a supplementary question focused on this point;

    iii) Even if I were to make an 'in principle' decision now, such a decision would have to be subject to a further welfare review/enquiry of some kind as/when the pandemic has passed, in order that I could then be satisfied that QD remains fit for travel abroad, and that this would not be contrary to his best interests; this approach corresponds with that taken by Hedley J in relation to a related point arising under MCA 2005 Sch. 3 para 12 in the case of Re MN  [2010] EWHC 1926 (Fam) at paras [35] to [36] ("It has to be said, however, that were the current stay to remain in place for an appreciable period, this court may well need an updated assessment from [the expert advising on welfare]");

    iv) It is agreed that there is, in any event, a need for some further evidence from KD about the arrangements for QD in Spain; there is no confirmed space for QD at Vista Al Mar; it is not confirmed that the staff there will cater for the needs of a person with dementia.  She has agreed to furnish this further information in writing.  Even if this information were available now (which it is not), given the likely delay in resolving this issue, it is likely that updated/contemporary evidence on these points would have been required in any event;

    v) The Applicants have conceded that they cannot and will not take advantage of QD's continued presence here in this country to mount a case down the line that his habitual residence is changing or has changed; I would not in any event be minded to reach such a conclusion on the facts given the extraordinary prevailing circumstances.

Looking beyond the facts of QD's case, it is unfortunate that Cobb J was not in a position to find a way through the deadlock with which he was presented.  This is not the first time that the Court of Protection has encountered the problem that a foreign court may not exercise jurisdiction over a person until physically present upon their soil – even where it is clear that they are habitually resident there.  Similar problems have been encountered rather closer to home with Sheriffs' courts in Scotland, which have led to complex, and not entirely satisfactory, steps to be taken to make urgent applications upon the person reaching Gretna Green whilst travelling under cover of an English order.