By Daniel Clark, 29 September 2024
This case began as an urgent application to the Court of Protection in August 2023. It wasn’t until May 2024 that it came before a judge.
In August 2023, XY (who resides in Turkey) was visiting the UK with her brother, CD. She has done this many times but, on this occasion, became unwell and was admitted to hospital.
When in hospital, CD found it very difficult “to be taken seriously as [XY’s] representative” (in the words of his Counsel) by members of hospital staff, despite the fact that he is recognised as XY’s guardian in Turkey. He therefore made an urgent application to the Court of Protection, asking for recognition and enforcement of the Turkish Guardianship Order.
The case never went to court. The Office of the Public Guardian had to confirm that the Turkish Guardianship Order was valid and, after a 7-day admission, XY was discharged and returned to Turkey.
After an almost 9-month delay (it’s not clear to me why there was such a long delay) the application was listed for hearing before the Vice-President of the Court of Protection, Mrs Justice Theis, on 2nd May 2024.
Despite the delay, CD expressed his wish for the application to proceed so that XY can still visit England with him regularly. At the moment, he does not feel comfortable doing so given the possibility that XY may experience the need for another hospital admission.
The case (COP 14129463) was then transferred to Senior Judge Hilder, and it was finally listed before her on 17th July 2024. She was sitting remotely, via MS Teams, so that CD could participate in proceedings from Turkey. While XY was with her brother throughout the hearing, she was discharged as a party to proceedings in accordance with guidance in cases of this kind (which I discuss below).
CD was represented by Victoria Butler-Cole KC of 39 Essex Chambers and Rhys Hadden of Serjeants’ Inn Chambers, acting pro-bono, having been instructed via the charity Advocate. Its front page explains that they ‘match members of the public who need free legal help with barristers who are willing to donate their time and expertise in deserving cases for those who are unable to obtain legal aid and cannot afford to pay.’
Cases that concern the recognition of orders made in a foreign jurisdiction are quite unusual, and I’ve only been able to find three blogs[i] on the Open Justice Court of Protection Project website that deals with the issue. All of them concern an application made by the Health Service Executive of Ireland and related to one-off decisions (whereas this was recognition of an Order).
This case is novel for two reasons. First, the position statement states that ‘there are no reported decisions concerning the recognition and/or enforcement in this jurisdiction of foreign protective measures made in Turkey’. Second, the case is novel in that the XY was not currently in the jurisdiction of the court, and only visits England for limited periods of time.
This therefore could have been a very difficult hearing to follow. However, my understanding was assisted by a very detailed opening summary, as well as the position statement of CD, which he was happy for the barristers to share with me.
Transparency matters: “Doing a public service job”
As is usual for this judge, the hearing started with her asking me to confirm that I was in a private place, and that I had received (and understood) the Transparency Order.
The judge was also alive to the fact that it may be odd for CD to find that a random member of the public was observing the hearing, particularly given that the court in Turkey is not as open as the Court of Protection. She assured him that members of the public, ‘can watch what the court is up to. Really what they’re interested in is what I’m doing, they’re not here for some surveillance of you…They’re doing a public service job keeping an eye on the court and [the protected party’s] privacy is protected by the Transparency Order’.
After observing the hearing and reading the position statement, it struck me that the specific details of the case could inadvertently reveal, to those who know them in the UK, the identities of XY and CD as a party to proceedings.
I have therefore taken the unusual step of giving them both random initials in this blog. There are also other identifying features that I have decided not to mention. By this I mean no disrespect; I simply wish to ensure that I make good on the judge’s assurance that the privacy of XY (and indeed that of CD) is protected.
The situation in Turkey
When I saw the case was listed as concerning ‘Recognition and enforcement of Turkish Guardianship Order’, I was intrigued. In preparation for the hearing, I attempted to find out whatever I could about what a Turkish Guardianship Order actually is. Unfortunately, (an admittedly hurried) Google search was not as forthcoming as I would have liked, and a search of my university library also did not give me much.
I was however able to find multiple references to guidance by Mr Justice Mostyn, published in Health Service Executive of Ireland v Florence Nightingale Hospitals Ltd. In this case, the judge was considering whether to declare that protective measures made in the High Court of the Republic of Ireland could be recognised in England.
To assist his thinking, the judge constructed a “checklist” of 22 questions. These, in theory, could be used for all cases where a foreign court has made orders in respect of a person. They are concerned with confirming that the foreign made order will be compliant with law in the United Kingdom. It is in this judgment that Mostyn J confirms that a protected party can be discharged as a party, unless there is an overwhelming reason for them to be added as one.
It turned out that this also guided the discussion in court, though I do not go through it step-by-step in this blog.
With that in hand, I felt like I was more ready than I initially was.
During the hearing, it was explained that CD had helped to look after his sister for many years. In 2013 he was advised to apply to be appointed as XY’s legal guardian, pursuant to a Guardship order, and this resulted in CD making an application to the Court of Peace (the name for the civil court in Turkey). This application involved an independent medical assessment of XY, as well as several checks on CD for criminal convictions or a conflict of interest.
In 2014, the Court of Peace made CD the legal guardian for his sister. It authorises him to make decisions about her ‘health (including medical treatment), her welfare and any financial decisions’.
As Counsel remarked during the hearing, the powers are “a bit more like an LPA which doesn’t tell you what an attorney can or cannot do”. There are, however, some importance differences. CD is not allowed to move XY into a care home or authorise her receipt of a large sum of money – this would require the authorisation of the court.
Furthermore, the guardianship is renewed every two years: it is not assumed that a person appointed a guardian in one year will still be suitable to act as such in two years’ time.
Are the documents valid?
Counsel recognised CD as possessing expert knowledge, and included him in explaining various issues to the judge. This struck me as eminently sensible (after all, it is CD who lives in Turkey). I also thought that this must have been quite empowering for CD. After a bad experience last year, he was now being recognised as somebody who can assist in understanding his sister’s circumstances.
The judge also took great pains to ensure that CD felt at ease: after all, the Court of Protection is not an adversarial court. For example, she joked that, “I’m afraid your English is much better than my Turkish, so I need some translation of your Turkish court documents”.
The first issue that the judge dealt with was whether the Turkish documentation she had in front of her was valid. In particular, she was concerned that the person to whom an oath of translation (certifying the translations were accurate and complete) was not the same person who had translated other documents.
It was clear that the judge did not want this case to become long and protracted but it was also necessary for her to understand how the documents were translated. As she put it, “it’s really important that if the court is going to recognise a document from a foreign court that I have a proper understanding of what the court says.”
Rather than put proceedings on hold, she decided to ask CD some questions following an affirmation that his evidence would be truthful. He confirmed that the translation was accurate, and he could see no errors in it. The judge was happy with this, and gave a mini-judgment that “notwithstanding that I don’t have an oath of translation, I am satisfied” that the translation is accurate.
What about best interests?
The judge had seen evidence, and was satisfied, that XY lacks the capacity (under the meaning of English law) to make decisions about her care and treatment, as a result of what the Mental Capacity Act 2005 rather crudely describes as ‘an impairment of, or a disturbance in the functioning of, the mind or brain’.
However, the judge was concerned that, “there’s nothing here that requires the guardian to make decisions in the best interests of the subject”.
CD offered that, in actual fact, there is provision in Turkish law that, “I must act in her best interests, and because they are in the law I accept these conditions”.
This did not, however, resolve the problem for the judge, who remarked that “I very much doubt that a harassed doctor in an overcrowded ward would have any awareness of that”.
The issue, therefore, needed some thinking through. In the view of the judge (and I agree), it is unreasonable to expect those in England and Wales providing care for XY to familiarise themselves with Turkish law. While she did not doubt the veracity of CD’s claim that he must (and in any event would) act in XY’s best interests, she also needed to take as many steps as possible to ensure that there would not be a repeat of the previous year’s experience.
As a result, she wrote into the order that CD can only exercise the Guardianship Order in compliance with the English law principles as set out in the Mental Capacity Act 2005. In order to ensure that this would be understood, the judge explained the principles of the Act, and how best interests decisions are reached.
Furthermore, if it was the case that the Guardianship Order was revoked in Turkey, the Order recognising its legitimacy in England and Wales would be automatically revoked. In other words, CD could only exercise powers in England and Wales that he could also exercise in Turkey.
At the conclusion of the hearing, the judge declared that the Turkish Guardianship Order could be recognised in England and Wales, and so CD can make decisions on XY’s behalf (if needed) while in the country. She was however clear that “the ultimate decider is the court”, and this does not preclude further hearings if medical teams disagree with the decisions that CD is taking.
Final thoughts
This hearing has made me wonder whether England can learn a thing or two from Turkey.
I can’t imagine that the Turkish system is under-burdened. Despite this, there is still a 2-year renewal period of a Guardianship Order. There are also much stricter limits on the decisions that a Guardian can make (such as whether a person can move to a care home) in comparison to the decisions an LPA or Deputy can in England and Wales, as well as strict limits on what a guardian can authorise. In particular, I wonder how many abuses of the LPA system could be avoided if it was a requirement that this is reviewed.
I think it’s worth emphasising again that the barristers acting in this case did so pro-bono, which is work undertaken on a voluntarily (and unpaid) basis. Each year the judiciary publishes a pro-bono recognition list, which “recognises barristers and solicitors who gave 25 hours or more pro bono legal assistance over the last year”. Both Victoria Butler-Cole KC and Rhys Hadden feature in this list.
I was also impressed with the judge, who took every possible step (from explaining my presence in court to the principles of the Mental Capacity Act) to ensure that CD could participate fully in the court process.
In a recent blog about a case concerning the authorisation of an Irish court order, Celia Kitzinger notes that these type of cases often, “seem, by comparison with the usual standards in the Court of Protection, terribly cursory and not very person-centered”.
This wasn’t the case here.
XY was present throughout, and the judge recognised this. Towards the end of the hearing, she noticed that XY appeared to have fallen asleep, and she joked that, “I’m sure [XY] isn’t the only person attending my hearings who falls asleep but it’s lovely to see it”.
There were also numerous references to what XY enjoys to do, and these were also referenced in the position statement. For example, XY enjoys socialising, shopping, and listening to music. Despite the fact that XY was not a party, the judge and barristers ensured that this hearing did not become coldly clinical or simply concerned with a point of law.
All in all, this hearing struck me as an example of some of the best elements of the Court of Protection: rigorous, committed to the law, and never losing sight of the real people at the centre of it.
Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He is on LinkedIn, X @DanielClark132 and Bluesky @clarkdaniel.bsky.social.
[i] ‘From Prison in Ireland to Care Home in England’ by Adam Tanner (14th August 2020) – https://openjusticecourtofprotection.org/2020/08/14/from-prison-in-ireland-to-care-home-in-england/
‘Irish cases in the Court of Protection’ by Jack Thorold & Chiara Cordone (11th June 2024) – https://openjusticecourtofprotection.org/2024/06/11/irish-cases-in-the-court-of-protection/
‘Another Irish Schedule 3 case: “An oddity in the Court of Protection”’ by Celia Kitzinger (11th September 2024) – https://openjusticecourtofprotection.org/2024/09/11/another-irish-schedule-3-case-an-oddity-in-the-court-of-protection/
Promoting Open Justice in the Court of Protection 