TD and BS v KD and QD



Judge: Cobb J

Citation: [2019] EWCOP 56

Summary

QD was a man in his 60’s who suffered from dementia connected with an atypical form of Parkinson’s disease. Until September 2019, he was living with his second wife, KD, in Spain and had been so for several years. In September 2019, he flew to this country with his son and daughter from his first marriage, TD and BS, without KD’s knowledge or agreement. TD and BS then sought a range of welfare orders in the Court of Protection including, in particular, that he reside in a care home in England, that he not return to Spain, and that he have only supervised contact with his wife, KD.

The matter was listed before Cobb for the determination of a preliminary issue, namely whether the Court of Protection had jurisdiction to determine the application or whether the case should be stayed pending transfer to Spain.

TD and BS argued that while QD was habitually resident in Spain until September 2019, he was now habitually resident in England. As a feature of this argument, TD and BS contended that the removal of QD from Spain was not wrongful but was justified under the common law doctrine of necessity, alternatively urgency. Alternatively, if the Court found that QD was habitually resident in Spain, then the Court should invoke the inherent jurisdiction so as to make substantive orders in relation to QD as a vulnerable adult in relation to his care, contact with others, and residence.

QD (by his litigation friend, the Official Solicitor) and KD argued that QD was at all material times habitually resident in Spain and that the Court of Protection’s powers were therefore limited to making protective orders pending transfer of the proceedings to the Spanish Court.

After setting out the relevant provisions of Schedule 3 to the Mental Capacity Act and case law in relation to habitual residence, Cobb J concluded on the facts that QD was habitually resident in Spain. In reaching his conclusion, Cobb J was particularly influenced by the following factors identified at paragraphs 28-30 of his judgment:

  • When he had capacity, QD chose to live in Spain and this appears to have been his permanent home;
  • QD had lived in Spain for main years (he first moved there in 2012 and became a legal resident in Spain in 2014);
  • QD had more than one property in Spain;
  • QD received health care in Spain;
  • QD was integrated into life and a community in Spain where he appeared to have a social life;
  • It was conceded by TD and BS that prior to September 2019, QD was habitually resident in Spain;
  • QD’s wife continued to live in Spain and sought to regularize the care arrangements for QD in Spain by initiating proceedings for legal guardianship in Spain some weeks before QD was relocated to England
  • QD’s move to this country was achieved by stealth.
  • There was no urgent need to make substantive orders to avert an immediate threat to life or safety or an immediate need to for further or other protection.

 

Cobb J also rejected the use of the inherent jurisdiction as a means of making substantive orders in relation to QD as he considered that to do so would be “to subvert the predictable and clear framework of the statute in an unprincipled way” (para 31). In the circumstances, Cobb J exercised the limited jurisdiction available to him pursuant to Schedule 3, para 7(1)(d) to make a protective measures order which provided that QD was to remain at and be cared for at a care home in England and that the authorisation of his deprivation of liberty would be continued until such time as the national authorities in Spain determined what should happen next.

Comment

Disputes of jurisdiction in the Court of Protection are not often reported and this case provides a useful summary of the principles to be applied in determining the court’s jurisdiction of in cases where there is an international aspect. It is also an interesting and useful addition to the body of case law on the exercise of the inherent jurisdiction post-MCA.

 

CategoryInternational jurisdiction of Court of Protection, Other Date

Keywords


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