Jake Thorold & Chiara Cordone, 11th June 2024
Ordinarily, the Court of Protection is concerned with the personal welfare or property of people who are “habitually resident” (a term used in cases involving children and vulnerable adults) in England and Wales. On occasion, however, the Court is required to step outside of this comfort zone and consider issues relating to people who are “habitually resident” other than in England and Wales, notwithstanding that they may be physically located there.
This situation has arisen multiple times in recent years in respect of people from the Republic of Ireland. It is sometimes the case that Ireland lacks a suitable placement or appropriate medical treatment for a person’s particular needs (this appears to be particularly the case for those with serious eating disorders), resulting in the Irish High Court making orders for a placement or treatment in England and Wales, in circumstances which (to date) have always involved depriving them of their liberty in the relevant facility.
A recent example of this is the case of Re RO [2023] EWCOP 55. In October 2023, the Irish High Court authorised the continued placement of a young Irish citizen at a specialist eating disorder facility in England and Wales. This was despite the young woman in question, who remained “habitually resident” in Ireland, making clear that she wished to return to Ireland even if that as to have a serious impact on her health. Proceedings were subsequently issued in the Court of Protection for the Irish High Court’s order to be recognised and declared enforceable in England and Wales.
How does the Court of Protection approach this situation? Can the Court of Protection second-guess the decisions of a foreign court?
Not a Best Interests Decision
The legal provisions governing the Court of Protection’s powers over people who are habitually resident other than in England and Wales are contained in Schedule 3 of the Mental Capacity Act 2005. In summary, this schedule provides a mechanism for the Court to make declarations that “protective measures” ordered by a foreign court be recognised and enforced in England and Wales. For these purposes, “foreign courts” include the courts of Scotland and Northern Ireland, as well as those of other countries.
A “protective measure” is defined in the Mental Capacity Act 2005 to include any measure directed to the protection of the person or property of an adult (which encompasses anyone over the age of 16 in this context) who, as a result of an impairment or insufficiency of his personal faculties, cannot protect their interests. Notably, a determination that a person lacks capacity constitutes a “protective measure” under the legislation.
These definitions come from the Hague Convention on the International Protection of Adults (2000). The UK has signed the Hague Convention, but not ratified it (it has only been ratified by Scotland), but these definitions are nonetheless incorporated into domestic law by Schedule 3 of the Mental Capacity Act.
In the Irish cases referenced above, the typical course is that – following an order of the Irish High Court (which, it should be noted, continues to review matters frequently even after a person moves to England / Wales) – the Health Service Executive of Ireland applies to the Court of Protection for the protective measure to be recognised and declared enforceable in England and Wales. The procedure for making such an application is contained in the Court of Protection Rules 2017 Practice Direction 23A, which details a range of evidence which will need to be provided.
Perhaps most strikingly, unlike in an ‘ordinary’ Court of Protection matter there is no direct requirement to provide capacity evidence concerning the person in respect of whom an order is sought (albeit if it was obvious that a person did not lack capacity, it is likely that the Court of Protection would refuse to enforce the Irish High Court order). This reflects the fact that the Court of Protection is performing a very different role to its standard fare. Rather than being the primary decisionmaker, the Court of Protection’s role is essentially limited to determining whether the foreign protective measure can be lawfully implemented by scrutinising whether the core procedural and substantive rights of P have been complied with. When such an application is made, the Court of Protection cannot, for example, conduct its own best interests analysis that it might wish to substitute for that of the Irish High Court.
In the important case of Re PA [2016] Fam. 47, the Court of Protection endorsed the position that a decision to recognise or enforce a foreign protective measure is “not a decision governed by the best interests of the individual… Thus it follows that the Court will be obliged to recognise and enforce a measure in a foreign court order even where applying a best interests test it would not be included in an order made under the domestic jurisdiction under the MCA”. This should be distinguished, however, from a decision of the Court of Protection regarding how to implement any such measure, as part of which the adult’s best interests must be considered.
What can the Court do?
It’s important to acknowledge, however, that the Court of Protection’s power is not entirely circumscribed to simply a rubber-stamping exercise, and in certain situations the Court can refuse to recognise a foreign protective measure. The Court has set out very detailed checklists for Deprivation of Liberty cases) in SV, Re [2022] EWCOP 52 (08 December 2022) which must be met for a foreign protective measure to be recognised, and indicated that an oral hearing is always required in such cases in The Health Service Executive of Ireland v A Hospital Provider [2023] EWCOP 55 (24 November 2023), so the Court is not merely making these decisions ‘on the papers’.
The Court’s discretion not to recognise a protective measure may apply where the measure taken was not urgent and yet the adult concerned was not given an opportunity to be heard in breach of the rules of natural justice. Secondly, the Court may choose not to recognise a protective measure where such recognition would be “manifestly contrary” to public policy, or the measure would be inconsistent with a mandatory provision of the law of England and Wales.
Examples of the Court of Protection refusing to recognise and enforce a foreign order are rare. Recently, however, in Aberdeenshire Council v SF (No.2) [2024] EWCOP 10, Mr Justice Poole did so in relation to a Scottish Guardianship Order which gave power to P’s mother to authorise arrangements amounting to a deprivation of liberty on her daughter’s behalf:
“In my judgment therefore, no opportunity was provided to SF to be heard in the case in which the protective measure was made. Furthermore, having regard to the wide powers granted to the guardians, including authorisation of the deprivation of SF’s liberty, and the application of those powers to any future community placement, and given the duration of the order (proposed to be indefinite and made for seven years), the failure to give SF an opportunity to be heard did amount to a breach of natural justice. I am sure that all those involved sought to protect SF’s best interests and that SF’s parents were properly assessed as being suitable guardians. I do not doubt that SF lacked capacity at that time to make decisions about her personal welfare. However, there was no opportunity for her wishes, feelings, and views to be communicated to the court and no provision made for her interests to be represented. There were no safeguards for the protection of her Art 5(1) rights. Natural justice required that in a case where SF’s liberty was being put into the hands of others for a period of seven years, she should have had an opportunity to be heard and/or an opportunity to be represented. SF’s access to the court should not have been dependent on her taking the initiative. Effective access should have been secured for her. As it is, there were no measures taken to ensure that her Art 5(1) rights were upheld.”
As such, the Court will in certain situations decline to recognise a foreign “protective measure”, in this situation because the adult in question had not been given an opportunity to be heard. It is perhaps somewhat of an irony, therefore, that the Court of Protection will often consider the question of whether to recognise and / or permit enforcement of a foreign protective measure without the relevant adult even being a party to the proceedings or having independent representation.
This is not without controversy, and – as Alex Ruck Keene and Chiara Cordone have argued (a walkthrough of this article is available here)– it gives rise to an uncomfortable tension that a person lacking capacity in England and Wales can have very different rights to another person in an almost entirely analogous situation save that the first person is “habitually resident” in a foreign country.
Conclusion
These cases are without question an oddity in the Court of Protection world. As put by Alex Ruck Keene, they require “the Court of Protection, and those appearing before it… mentally to undertake a very significant gear shift”. As ever, however, it is essential that the person at the heart of proceedings is not lost sight of in the midst of what is unquestionably a legally complicated area.
Jake Thorold and Chiara Cordone are both barristers at 39 Essex Chambers who specialise in Court of Protection work.
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