PO and Another v GO and Others
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 13 December 2013 |
| Neutral Citation | [2013] EWHC 3932 (COP) |
| Court | Court of Protection |
| Date | 13 December 2013 |
| Docket Number | Case No: 12261441 |
2013 EWHC 3932 (COP)
COURT OF PROTECTION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE COURT OF PROTECTION
Case No: 12261441
Ms Claire van Overdijk (acting pro bono) for JO
Mr Alex Ruck Keene (instructed by Irwin Mitchell) for Inverclyde Council
GO and MP in person, RO not attending
Hearing date: 30 July 2013
Sir James Munby President of the Court of Protection:
PO, who is some 88 years of age, is the mother of four children: the applicant JO, her brothers GO and RO and her sister MP. It is common ground that PO lacks capacity to decide where to live. It is also common ground that, until the events which have given rise to this litigation, PO was 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. GO and RO are PO's financial attorneys under an enduring power of attorney granted in 2004 and registered in 2010.
The facts
The facts giving rise to the litigation, initially in Scotland and now in the Court of Protection, are shortly stated. 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. For various reasons which there is no need for me to rehearse, 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 Mental Capacity Act 2005). It is on that basis that the Sheriff Court accepted and has since exercised jurisdiction.
There is no need to go through the proceedings in the Sheriff Court in any great detail. The Sheriff made an interim welfare guardianship order in July 2012 appointing the Council's chief social work officer as PO's welfare guardian with powers in relation to her personal welfare. The full hearing of the Council's application followed in November 2012. The Sheriff gave judgment in December 2012 confirming the interim order and extending it for three years (see section 58(4) of the 2000 Act). I need only add that at an interim hearing in November 2012 the Sheriff had dismissed an argument advanced by JO that the Scottish courts did not have jurisdiction and that there has been no attempt by JO to appeal any of the Sheriff's orders.
The applications to the Court of Protection
JO's application to the Court of Protection for permission to bring her application had been made earlier in November 2012. As subsequently refined what JO seeks is an order from the Court of Protection for the return of PO to England and Wales. The Council's riposte is 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 support the Council's stance.
The matter came before me for directions on 20 March 2013. On 26 June 2013 Senior Judge Lush dismissed an application by JO to restrain the sale of PO's house in Worcestershire. In accordance with the directions I had given, JO's application and the Council's cross-application came on for hearing before me on 30 July 2013. JO was represented by Ms Claire van Overdijk and the Council by Mr Alex Ruck Keene. GO, RO and MP were not represented (though GO and MP were present during the hearing) but each had made their position clear in written documents filed with the court. At the end of the hearing I reserved judgment. JO renewed her application for an order preventing the sale of PO's house. I refused to make any order. Subsequently, on 15 August 2013, JO issued a further application. I shall return to this below.
A sizable volume of material has been filed relating to PO's wishes and welfare. Given the limited ambit of the issues falling for determination at this stage I need refer to very little of it.
The legal framework
In the background to the issues I have to determine stands the 2000 Hague Convention on the International Protection of Adults. The Convention has been ratified by the United Kingdom in relation to Scotland alone. In England and Wales it is given effect, but only to the extent thereby specified, by certain provisions of the 2005 Act. It is therefore primarily to the 2005 Act rather than the Convention itself that I must have regard.
Section 63 of the 2005 Act (headed "International protection of adults") provides as follows:
"Schedule 3 –
(a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and
(b) makes related provision as to the private international law of England and Wales."
For present purposes the material provisions in Schedule 3 are to be found in paragraph 7, which provides as follows:
"(1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to –
(a) an adult habitually resident in England and Wales,
(b) an adult's property in England and Wales,
(c) an adult present in England and Wales or who has property there, if the matter is urgent, or
(d) an adult present in England and Wales, if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to him.
(2) An adult present in England and Wales is to be treated for the purposes of this paragraph as habitually resident there if –
(a) his habitual residence cannot be ascertained,
(b) he is a refugee, or
(c) he has been displaced as a result of disturbance in the country of his habitual residence."
I need not refer to paragraph 8 which, in accordance with paragraph 35, has effect only if the Convention "is in force in accordance with Article 57." It is not. Moreover, and in any event, paragraph 8, even if it was in force, would not apply in a case such as this.
PO is not present in England and Wales; she is in Scotland. Accordingly, paragraphs 7(1)(c) and (d) do not apply. PO has property in England and Wales, in particular her house in Worcestershire, so in relation to that the Court of Protection has jurisdiction under paragraph 7(1)(b). Otherwise, the Court of Protection's jurisdiction, if any, can be based only on paragraph 7(1)(a). Hence the fundamental question: Is PO habitually resident in England Wales?
Rule 87 provides as follows:
"Procedure for disputing the court's jurisdiction
(1) A person who wishes to –
(a) dispute the court's jurisdiction to hear an application; or
(b) argue that the court should not exercise its jurisdiction,
may apply to the court at any time for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction that it may have.
(2) An application under this rule must be –
(a) made by using the form specified in the relevant practice direction; and
(b) supported by evidence.
(3) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision, including –
(a) setting aside the application;
(b) discharging any order made; and
(c) staying the proceedings."
Rule 87 is supplemented by PD 12B, but nothing turns on its provisions.
Rule 87 contemplates the existence of two conceptually quite distinct powers in the Court of Protection: one, the power to determine that it "has no jurisdiction"; the other, the power to determine that it "should not" or "will not" exercise its jurisdiction. The one involves the determination of what is essentially a question of law – does the court have jurisdiction? The other involves the exercise of a judicial discretion – accepting that the court has jurisdiction, should the court nonetheless decline to exercise it?
It is convenient to deal with the two questions in turn.
Jurisdiction
"Habitual residence" is, no doubt designedly, defined neither in the Convention nor in the 2005 Act, though there is an authoritative Explanatory Report on the Convention drawn up by Paul Lagarde dated 5 January 2000. For present purposes I need refer to only three paragraphs of the Lagarde report. In paragraph 49 he points out that:
"No definition was given of habitual residence, which despite the important legal consequences attaching to it, should remain a factual concept."
In paragraph 50 he says:
"The change of habitual residence implies both the loss of the former habitual residence and the acquisition of a new habitual residence. It may be that a certain lapse of time exists between these two elements, but the acquisition of this new habitual residence may also be instantaneous on the simple hypothesis of a move of the adult concerned when this has occurred on a long-term if not final basis. This is then a question of fact, which it is for the authorities called upon to make a decision to assess."
In paragraph 51 he notes that:
"The Commission did not discuss again certain questions connected with the change of habitual residence which were debated in detail during negotiations on the Convention on the Protection of Children. It thus...
To continue reading
Request your trial
-
MASM v MMAM (by her litigation friend, the Official Solicitor) (1st Respondent) MM (2ndRespondent) London Borough of Hackney (3rd Respondent) Homerton University Hospital NHS Foundation Trust (4th Respondent)
...incapacitous adult from the jurisdiction. There is no authority to support this as a broad statement of principle. In Re PO: JO v GO [2013] EWHC 3932 (COP), Sir James Munby P held at paragraph 18 that:" "In the case of an adult who lacks the capacity to decide where to live, habitual reside......
-
The Health Service Executive of Ireland v PA and Others
...by the United Kingdom in relation to Scotland alone. As Sir James Munby P observed in Re O (Court of Protection: Jurisdiction) [2013] EWHC 3932 (COP) at paragraph 7, in England and Wales the Convention is given effect, but only to the extent thereby specified, by certain provisions of the ......
-
Hugh Adrian Scott Jones v Mr Jason Parkin (First Respondent) Miss Margaret Lynne Parkin (Second Respondent) Mrs Janet Miller (Third Respondent) Mrs Margaret Phyllis Johnson (Fourth Respondent) Mrs Gladys Meek (by her Litigation Friend, the Official Solicitor) (Fifth Respondent)
...reference was made by Mr Rees to the decision of Sir James Munby, sitting as President of the Court of Protection, in Re: PO [2013] EWHC 3932 (COP), reported at [2014] COPLR 62, at paragraphs 30 through to 32. In that case, Sir James Munby was considering the forum non conveniens principle......
-
An English Local Authority v SW, by her Litigation Friend, the Official Solicitor and Others
...by A, it is possible that a child may have no country of habitual residence at a particular point in time." 45 The next case is In the Matter of PO [2013] EWHC 3932 (COP). In that case Sir James Munby P. reiterated that "habitual residence is in essence a question of fact" (paragraph 17). ......