Judge: Hedley J.
Citation:  EWHC 1926
Summary: This case is the first in which the complex provisions of Schedule 3 to the MCA 2005 have been considered. These provisions relate, inter alia, to the recognition and enforcement of protective measures taken in foreign courts, and give rise to difficult problems of statutory interpretation.
The facts of the case are complex. However, in broad terms, Hedley J was faced with the question as to whether and, if so, according to what criteria, should the Court of Protection recognise and enforce an order of a court of competent jurisdiction in California requiring the return of an elderly lady with dementia, MN, to that State. She had been removed from California by her niece, PLH, to whom certain authority had been granted under the terms of an Advance Healthcare Directive. MN lacked capacity to make all relevant decisions and the Californian court had control of her property. Whilst the facts of the particular case meant that the order was not, in fact, capable of enforcement, Hedley J took the opportunity to consider the issues and given a reasoned judgment so that both the parties and the Californian courts would be aware of the approach which would be adopted by the Court of Protection.
Hedley J reviewed the provisions of Schedule 3. He found that the starting point was to ask where MN was habitually resident, as it was only if she was habitually resident in England and Wales or that the Court would exercise its ‘full original jurisdiction’ under the Act (paragraph 20 -finding there also that this was not a case where her habitual residence could not be determined, an alternative route to the exercise of such full jurisdiction under paragraph 7(2)(a)). He then considered how the question of habitual residence was to be determined, holding as follows:
“22. …Habitual residence is an undefined term and in English authorities it is regarded as a question of fact to be determined in the individual circumstances of the case. It is well recognised in English law that the removal of a child from one jurisdiction to another by one parent without the consent of the other is wrongful and is not effective to change habitual residence — see e.g. RE PJ [2009) 2 FLR 1051 (CA). It seems to me that the wrongful removal (in this case without authority under the Directive whether because Part 3 is not engaged or the decision was not made in good faith) of an incapacitated adult should have the same consequence and should leave the courts of the country from which she was taken free to take protective measures. Thus in this case were the removal ‘wrongful’, I would hold that MN was habitually resident in California at the date of [the Californian] orders.
23. If, however the removal were a proper and lawful exercise of authority under the Directive, different considerations arise. The position in April 2010 was that MN had been living with her niece in England and Wales on the basis that the niece was providing her with a permanent home. There is no evidence other than that MN is content and well cared for there and indeed may lose or even have lost any clear recollection of living on her own in California. In those circumstances it seems to me most probable that MN will have become habitually resident in England and Wales and this court will be required to accept and exercise a full welfare jurisdiction under the Act pursuant to paragraph 7(l)(a) of Schedule 3. Hence my view that authority to remove is the key consideration.”
In light of the approach outlined above, Hedley J was unable to proceed further without the issues of the construction of the Directive and the extent of the authority conferred and indeed the validity of its exercise (all matters to be determined under Californian) law either being determined in the California proceedings, or upon the basis of a single joint expert being instructed to advise the Court on the point.
In large part so as to assist the California court, Hedley J nonetheless went on to consider the position in the event that MN was found to be habitually resident in California, such that he was required to consider whether to recognise and enforce the protective measures taken in California. He noted that the starting point was that Paragraph 19(1) made recognition mandatory unless that paragraph was disapplied in cases (other than those falling under the 2000 Hague Convention on the International Protection of Adults) by either Paragraphs 19(3) or (4). He identified that the only relevant subparagraphs could be Paragraph 19(4)(a) (i.e. that recognition of the measure would be manifestly contrary to public policy) or Paragraph 19(4)(b) (b) (i.e., that the measure would be inconsistent with a mandatory provision of the law of England and Wales). At paragraph 26 of his judgment he had little hesitation in dismissing Paragraph 19(4)(a) as being a relevant consideration on the facts of this case, noting that “[a] decision of an experienced court with a sophisticated family and capacity system would be most unlikely ever to give rise to a consideration of 4(a); the use of the word ‘manifestly’ suggests circumstances in which recognition of an order would be repellent to the judicial conscience of the court.”
That left sub-paragraph 19(4)(b), which, as Hedley J, recognised, raised a matter both of importance and difficulty, namely the extent to which the court should takes best interests into account in recognition and enforcement proceedings. The submission of PLH, MN’s niece, was that if recognition of an order was not in the best interests of MN then to recognise (and enforce) such an order would be contrary to a mandatory provision of the law namely Section 1(5) of the Act. Thus a best interests exercise must always be undertaken to ensure that Section 1(5) is not contravened.
However, as Hedley J recognised, if such an argument were right, it would drive “a coach and four through the summary and mandatory nature of Part 4 of Schedule 3,” because, in essence, it would require a full consideration of whether the recognition and enforcement of the protective measure would be in the best interests of P. As he noted at paragraph 29, the problem was particularly stark on the facts of the case before him, because he would be required (by Paragraph 12 of Schedule 3) to consider MN’s best interests in implementing any protective measure recognised and enforced by the Court of Protection. In so doing, he noted he had evidence before him that “might well persuade” him that a journey back to California could be undertaken consistent with MN’s best interests. However, he then asked himself, rhetorically, how far ahead should he then look in determining whether a journey was in her best interests? To look too far would, in his view, come very close to a full best interests inquiry.
Hedley J therefore asked himself whether s.1(5) in fact applied. Section 1 provides in material part that “(l) The following principles apply for the purposes of this Act (5) An act done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests…” In his view, the words of s.1(5) gave rise to the question of whether a decision to recognise and/or enforce an order was a decision made for or on behalf of MN.
In the end, Hedley J concluded at paragraph 31 that “a decision to recognise under paragraph 19(1) or to enforce under paragraph 22(2) is not a decision governed by the best interests of MN and that those paragraphs are not disapplied thereby by paragraph I 9(4)(b) and Section 1(5) of the Act. My reasons are really threefold. First, I do not think that a decision to recognise or enforce can be properly described as a decision for and on behalf of’ MN. She is clearly affected by the decision but it is a decision in respect of an order and not a person. Secondly, this rather technical reason is justified as reflecting the policy of the Schedule and of Part 4 namely ensuring that persons who lack capacity have their best interests and their affairs dealt with in the country of habitual residence; to decide otherwise would be to defeat that purpose. Thirdly, best interests in the implementation of an order clearly are relevant and are dealt with by paragraph 12 which would otherwise not really be necessary.”
Hedley J recognised (at paragraph 32) that on the fact of this particular case his construction “may lead both to hardship and artificiality. In cases involving abducted children the hardship of sending a child back for the parent to make a relocation application is (if the application succeeds) real but is probably no greater than a major inconvenience. Here, however, the position is different. MN may survive the return journey. PLH may have the right to submit to the Californian court that it is in MN’s best interests to live with her in England. It may, however, be that she could not survive another trip and so any welfare enquiry in California would be rendered nugatory.”
The remainder of his judgment is conveniently summarised at paragraph 38 as follows:
“The basis of jurisdiction is habitual residence. In this case the key to that decision is whether PLH’S authority as agent permitted this removal to England. If it did not, MN remains habitually resident in California and the courts of that State should exercise primary jurisdiction. If, however, it did, I am likely to conclude that MN is now habitually resident in England and Wales and jurisdiction belongs to this court. If that is so, I could not enforce the order of the Californian court unless, having conducted a full best interests enquiry on evidence, I concluded that her best interests required a return to California. On the other hand if jurisdiction belongs to California, I am likely to recognise and enforce the Californian order (if un-amended and there is no stay) and to give directions for implementation unless either the carrier or Dr. Jefferys [the psychiatric expert instructed before the Court of Protection] were to advise otherwise. My best interests enquiry would essentially be confined to the journey essentially. However this court could adopt a full best interests jurisdiction at the invitation of the Californian court.”
Comment: Schedule 3 to the MCA 2005 is, on any view, a very odd piece of legislation. It was the subject of negligible debate in Parliament; no guidance or subordinate legislation has been issued to support it, and yet, on its face opens a very substantial can of worms. In particular, by Part 4 it mandates (subject to exceptions, some of which are outlined in the judgment in MN) recognition of protective measures taken in respect of adults abroad who may not, in fact, lack capacity within the meaning of the MCA 2005 (see Paragraph 4, which defines ‘adult’ as a person who “as a result of impairment or sufficiency of his personal faculties, cannot protect his interests,” and who has reached 16). “Protective measures” are very broadly defined, and may well include measures taken following procedures that would not necessarily be followed in the Court of Protection (and could be taken by a court of any jurisdiction – it is another oddity of the Schedule that it brings into effect a unilateral regime of recognition of such protective measures even where they have not been taken in countries who have signed the 2000 Hague Convention).
Hedley J’s judgment answers a number of important questions relating to Schedule 3, perhaps the most important of which is whether – inadvertently – a situation had arisen in which, in any application for recognition and enforcement was before the Court, the Court would be required to conduct a full best interests inquiry. Such a result would have been palpably at odds with the purpose of the Schedule that it is perhaps unsurprising that Hedley came to the conclusion that he did, but his decision in this regard is of considerable assistance.
Nonetheless, as he recognised, difficult questions will continue to arise as to the depth and width of any best interests analysis engaged in for purposes of implementation of a protective measure to recognised and enforced. It may be further judgments in this matter will shed light on this question; it may on the other hand be that we need to await the (inevitable) appearance of other cases posing these dilemmas before further judicial guidance is given.