The Health Service Executive of Ireland v IM (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 26 October 2020 |
| Neutral Citation | [2020] EWCOP 51 |
| Docket Number | * |
| Date | 26 October 2020 |
| Court | Court of Protection |
[2020] EWCOP 51
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Knowles
*
and
Mr David Rees QC (instructed by Bindmans) for the Applicant
Miss Keri Tayler (instructed by the Official Solicitor) for IM
Miss Christine Cooper (instructed by the local authority solicitor) for Kent County Council
Hearing dates: 29 September 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the patient and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
The application before me is for the determination of where IM, now aged 92 years, is habitually resident. She is presently living in Ireland, having moved there in September 2018. Prior to that move, she had been resident in Kent for over 55 years. If, as the Applicant contended, IM remained habitually resident in this jurisdiction, then issues as to her health and welfare were matters for the Court of Protection. If she was now habitually resident in Ireland as both Respondents contended, then such matters would fall within the jurisdiction of the High Court in Ireland.
In this judgment, I refer to the Applicant, the Health Service Executive of Ireland, as “the HSE”. It was represented by Mr David Rees QC. The Official Solicitor was represented by Miss Keri Tayler and the local authority, Kent County Council, by Miss Christine Cooper. I am grateful to all of them for their written and oral submissions.
Procedural History
Earlier Court of Protection proceedings were issued by the Office of the Public Guardian [“the OPG”] regarding the revocation of the Lasting Powers of Attorney for Property and Affairs and Health and Welfare granted in favour of IM's grandson, VS. VS disclaimed his appointment as IM's Property and Affairs and Welfare attorney and those proceedings concluded with a final order on 18 November 2019 when the court appointed a deputy for IM's property and affairs.
It appears that, in June 2019, the HSE proposed the appointment of a personal welfare deputy for IM. It made its concerns about her welfare known to the OPG and to the interim property and affairs deputy appointed by the court. The HSE also filed reports with the court on 22 November 2019 stating its view that IM should return to England. By an order dated 4 November 2019, the HSE were invited to attend a hearing on 25 November 2019 when the court noted that one of the issues to be addressed at that hearing was IM's habitual residence. The HSE attended court on 25 November 2019 but had not been told the hearing had already been vacated. This happened on 18 November 2019, the OPG having applied to withdraw the proceedings on 12 November 2019. The court concurred with that request on the papers and vacated the hearing on 25 November 2019 without apparent reference to the HSE's concerns or the earlier direction that IM's habitual residence remained in issue.
As the HSE was concerned that welfare issues relating to IM had not been resolved by the court's final order, the HSE made an application on 25 November 2019 for the appointment of a personal welfare deputy for IM. That application was replaced by one dated 28 February 2020.
On 2 April 2020 I approved an order containing interim declarations as to IM's capacity to conduct these proceedings and to make decisions about her residence and care. I also approved an investigation by the HSE into IM's background and circumstances to enable me to determine the issues of residence and care. At a hearing on 15 May 2020, I listed this hearing to determine the question of IM's habitual residence.
The Background Facts
The factual background to this matter is complicated by an absence of information about certain key issues. I have had to try and resolve some of the factual inconsistencies without hearing any evidence from those involved with IM's care. That is not unusual in what is intended to be a summary process to resolve doubt as to this court's jurisdiction to make decisions for IM.
Prior to September 2018 IM lived on the ground floor of a property in Kent and, despite her considerable age, was able to look after herself and go to the shops without assistance. The upper floor of the property appears to have been occupied by VS and his successive partners. According to NS, VS's sister, he appears to have lived with IM on and off since he was about 15 years old though VS told IM's solicitor that he had lived with IM for about 15 years. It is, however, beyond doubt that VS provided practical and other assistance to IM from time to time and it is reasonable to infer that the demands on him as her informal carer probably increased over time. IM's GP records contained many references to IM receiving support from VS as did the records from the Enablement at Home Service in 2017. IM also had other relatives living in Kent including NS, but her relationship with them seems to have been more at arm's length.
There were conflicting accounts of IM's relationship with VS. NS described a toxic and abusive relationship in which VS moved into IM's property and of IM being “too scared” to do anything about it. She stated that VS's then girlfriend used IM's bank card to take money from IM and alleged that VS and his partner also agreed with a builder to overcharge IM for work done on the roof of her property. A statement apparently made in connection with non-molestation proceedings in 2010 between NS and VS stated that, after Christmas 2009, IM broke down in tears on the telephone and told NS that VS had taken £6,000 from her. NS had encouraged IM to get VS to move out and believed that IM was scared of VS. From about 2013 NS had had several telephone calls with IM in which IM described VS “going berserk at her” and said that living with him was “like mental torture”. In January 2013, a safeguarding alert was raised by Kent County Council following an allegation from NS that VS had taken money and a bank card from IM but, surprisingly, no further action was taken.
It is important to note that none of these allegations have been put to VS and he has filed no evidence in these proceedings. The relationship between him and NS is clearly very poor indeed. By contrast, his former partner, SFC, told the OPG that IM doted on VS though she did confirm that his behaviour could be unreliable, volatile, and erratic. She told the Official Solicitor in May 2020 that VS had been very close to IM and had helped with her medication, hospital appointments, shopping, and other matters. She confirmed that IM would not have chosen to move to Ireland herself but would have gone along with what VS wanted as she relied on him. On the contrary, IM used to talk about remaining in her home and spoke about family buried in the local cemetery. I note that another relative, FS, described VS as doting on and worrying about his grandmother.
In May 2017, IM then aged 88, was referred to her local memory clinic due to concerns about cognitive deterioration. IM's disclosed medical records make no further reference to any action being taken as a follow-up to that referral. Coincidentally, in May 2017, Lasting Powers of Attorney [“LPAs”] for Property and Affairs and for Health and Welfare were executed in favour of IM's grandson, VS and his then partner, SFC. The LPAs were registered in July 2017. In July 2018, presumably consequent on the breakdown of VS and SFC's relationship, a partial deed of revocation was made, removing SFC as attorney and leaving VS as sole attorney. IM engaged a solicitor to act in those matters and there were no concerns raised as to her capacity.
In November 2017, IM was admitted to hospital after a fall. She was assessed as having the capacity to make the decision about her discharge home with a package of reablement care. On 18 February 2018, IM was the subject of an over-75s well person assessment. The assessment report expressly recorded that there were no concerns about IM's memory. It also recorded that IM knew what her medication was for. I note that she had a diagnosis of Chronic Obstructive Pulmonary Disease. In May 2018, IM was once more assessed, but no concerns were recorded about her mental capacity. She was further assessed for chest pain by ambulance staff on 17 August 2018 who expressed no worries about her mental health. She was then seen in the Accident and Emergency Department of the local hospital and there was no record of IM being confused or mentally impaired at that time.
However, in May 2018 it appears that IM was having frequent urinary tract infections and was struggling to manage her medication due to apparent confusion. In July 2018 three months of medication was requested from the pharmacy as IM was said to be going on holiday. Another prescription was requested in November 2018, but there was no-one at IM's home when it was delivered.
In Spring/Summer 2018, IM told another relative, FS, about a move to Ireland and the plan for her to live there with VS and AM (VS's new partner). When contacted by the Official Solicitor in May 2020, FS described IM as being quite happy with the proposed move. On 23 July 2018, IM told her GP about a...
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Aberdeenshire Council v SF (by Her Litigation Friend the Official Solicitor)
...all international family law instruments” whether relating to adults or children. In The Health Service Executive of Ireland v IM & Anor [2020] EWCOP 51, Knowles J extracted the following principles from the authorities, which I adopt, “a) Habitual residence is a question of fact and not a ......