Mental Capacity Case

An English Local Authority v (1) SW, by her litigation friend, the Official Solicitor (2) A Scottish Local Authority (3) RP and LC

Moylan J


The issue in this case, decided some time ago, but only recently made available on Bailii, was where an incapacitated adult (SW) was habitually resident for the purposes of determining whether the English court had jurisdiction to deal with applications under the MCA 2005.

The English Local Authority and the Scottish Local Authority submitted that SW was habitually resident in Scotland. The Official Solicitor submitted that she was habitually resident in England.

SW was a 36 year old woman who was born and lived in Scotland until 2009. In 2006 she had sustained hypoxic brain injury following a hypoglycaemic attack. She was in a rehabilitation unit in Scotland and subject to a compulsory treatment order until 2009. In 2009 a rehabilitation facility in England was identified. SW was keen to move to the facility and contacted the facility herself to see if there was a vacancy. In July 2009 SW moved from the hospital in Scotland to a hospital in England under a compulsory treatment order. She then immediately moved to the rehabilitation facility under a community treatment order. It was clear from the evidence that SW wanted to move to the facility in England even though she was moved using a series of compulsory orders.

In 2010 SW had moved from the rehabilitation facility to specialist supported accommodation. From that time SW lived in a one bedroom flat with support. SW was in a relationship with someone who lived in one of the other supported living flats. At some point after 2010 SW had started to express a desire to move from her current accommodation. SW had stated very clearly that she wanted to move. More recently she had said she did not want to live in Scotland. When SW was asked by her solicitor in March 2013 where home was she replied "I would have to say here these days". In January 2014 she told her solicitor that she wanted to move from where she was living as soon as possible but did not wish to move back to Scotland.

SW's care was jointly funded by Scottish public authorities. She also continued to have an allocated social worker from Scotland.

The English COP proceedings were started because there appeared to be a real prospect that SW's mother and stepfather would remove her from her home in England and take her back to Scotland in circumstances where it was said that there was a significant prospect that her health would be put at risk because they could not adequately care for her. The application proceeded (without the issue of habitual residence having been decided) on the basis that even if SW was not habitually resident in England, the court had jurisdiction under the MCA 2005, schedule 3, para 7(1)(c) because SW was present in England and the matter was urgent.

The judge held that it was clear from the evidence that SW lacked the capacity to decide where to live and the true nature of her care needs. She did not appreciate the level of support and assistance which she needed.

The judgment set out the legal framework in detail.

The Local Authorities focused on the 'integration test' and submitted that SW was not sufficiently integrated in England on the basis that her placements in England had been determined for her to varying degrees and the fact that she did not like living in her current placement.

The judge agreed with counsel for the OS that the local authorities had adopted too narrow a focus when addressing the circumstances of the case.

Importantly, Moylan J held that the definition of 'habitual residence' under the MCA 2005 should be the same as that applied in other family law instruments including Brussels IIa (Council Regulation (EC) No 2201/2013). If a different approach were taken as between adults and children, he considered, habitual residence would not even be applied consistently within Brussels IIa. It was plain that different factors would or may have differing degrees of relevance but the overarching test should be the same.

Furthermore, Moylan J held, the determination of habitual residence should be kept as free as possible from analytical complexities or constructs. It was a question of fact.

Moylan J noted that the Supreme Court in A v A (Children: Habitual Residence) [2014] 1 FLR 111 and Re LC (Childen) [2014] UKSC 1 had referred to the test or question as being whether there was some sufficient degree of integration in a social and family environment. Moylan J did not accept that was intended to narrow the court's focus to that issue alone as an issue of fact.  It was not a free-standing, determinative factor and in particular not to the exclusion of all other factors. As the CJEU held in Proceedings brought by A [2010] Fam 42 the national court must conduct an 'overall assessment' in the light of the factors set out in paragraphs 38 – 41 of its judgment.

In Mercredi v Chaffe [2012] Fam 22 the Court of Justice stated that the place of habitual residence "must be established taking account of all the circumstances of fact specific to each individual case".

Integration, as an issue of fact, could be an emotive and loaded word. It was not difficult to think of examples of an adult who was not integrated at all in a family environment and only tenuously integrated in a social environment but who is undoubtedly habitually resident in the country where they are living.

"Degree of integration," as with centre of interests, Moylan J held, was an overarching summary or question rather than the sole or even necessarily the primary factor in the determination of habitual residence. The broad assessment which was required properly to determine whether the quality of residence was such that it had become habitual in that it has the necessary degree of stability in order to distinguish it from mere presence or temporary or intermittent residence. This meant a sufficient, or some, degree of integration, not as a limited factual assessment but as a question to be answered by reference to the factors referred to by the CJEU and the Supreme Court.

Given that SW had been living in England since 2009 and had been living in her own flat since December 2010 there would need to be some compelling countervailing factors in order for it to be held that she was not habitually resident in England.

Counsel for the OS had set out a series of facts as pointing to SW being habitually resident in England (see paragraph 61 of the judgment) and those facts taken together with her long residence in England were not counterbalanced by the fact that she had been moved to England pursuant to a compulsory treatment order, her place of residence had been largely determined for her and the fact that she did not like her current placement.

By virtue of its duration, Moylan J found, SW's residence had acquired effective stability in the sense used by the Court of Justice. Many people would rather not be living where they are and might wish to be living elsewhere. However, at least after a person has been loving in one place for a significant period of time it will be difficult not to come to the conclusion that they are sufficiently integrated into their environment for them to be habitually resident there. To conclude otherwise would place too much weight on an assessment of SW's state of mind and the extent to which she feels settled.

Moylan J therefore held that SW was habitually resident in England and the court had jurisdiction to deal with applications under the MCA 2005.


This judgment helpfully sets out in detail all the recent case law on the issue of habitual residence but also forcefully reiterates that it is primarily a question of fact to be assessed in the round and on the particular circumstances of the case before the court.

The judgment is also of importance for its very clear statement that the tests for habitual residence should be aligned as between adults lacking capacity and children, and as between the Hague Conventions (at least those in the family sphere) and the EU legislation covering the same terrain.

It would be interesting to ask as a counter-factual in this case whether it would have made any difference had the relevant Scots authorities sought to time-limit SW's placement in England.    Whilst on the facts of this case it would appear clear that SW's habitual residence must have changed, would the same have applied had she been placed in England for a long-term, but nonetheless finite, rehabilitation placement?    It is possible that this question will be looked at later this month in the context of another cross-border case upon which we hope to report in our next issue.