The well-recognised wish to go home

By Daniel Clark, 25th November 2025

Where is home? 

For many people, that question evokes an instant answer. The man at this centre of this case, A, is no different. For him, home is Spain, where he lived for approximately 33 years. 

The problem is that he currently lives in a care home in Wales. Despite the fact that a circuit judge has found that A is habitually resident in Spain, and despite the fact that he clearly wants to return to Spain, that may not be an option for him. 

Whether that’s an option, and how the legal complexities should be addressed, is an issue for Mrs Justice Morgan. On Tuesday 7 October 2025, I observed a remote directions hearing in this case (COP 20009483). Representing the local authority, Neath Port Talbot County Borough Council, was Victoria Butler-Cole KC. Representing A, via his litigation friend, was Ian Brownhill, who was also joined by Jake Thorold.

In this blog, I’ll explain the background to this case, and draw heavily on a previously published judgment in this case to explain what habitual residence means and why a judge concluded that A is habitually resident in Spain. 

Next, I’ll explain some of the legal and practical complexities that Morgan J will need to deal with it at the next hearing.

Finally, I’ll share some personal reflections on what Morgan J described as “the well- recognised emotional human basic wish to go home”. 

1. Background and the previous judgment

On 10 June 2025, HHJ Richard Miller handed down judgment in this case: Neath Port Talbot County Borough Council v A & Ors.

In this section, the references to other pieces of case law are lifted from the published judgment. 

In his judgment, the judge explains that A was born in Wales but lived in Spain for approximately 33 years. He achieved residency there, which is due to expire in 2031. His wife, B, remains in Spain. His son, C, lives in South Wales.

In April 2024, C flew to Spain and A returned to Wales with him. C is unable to care for A at home, who now resides at D Care Home. He is unhappy there and wants to return to Spain. 

The question for the court at this stage was to determine A’s habitual residence. At §8 of the judgment, the judge explains that “habitual residence is a question of fact to be determined by a wide range of circumstances of the particular case. It is not a legal concept”. 

Knowles J, in Health Service Executive of Ireland v IM & Anor, set out seven key principles for determining habitual residence at §29 of her judgment. These principles include identifying the appropriate legal test as habitual residence being the “place which reflects some degree of integration by the child [and in this context adult] in a social and family environment”, the importance of the person’s state of mind, and the stability (rather than permanence) of the residence. 

In Local Authority v SW & Ors^[i], Moylan J held that,

b) The expression “degree of integration” is an overarching summary or question rather than the sole, or even necessarily the primary factor in the determination of habitual residence. The court’s focus should not be narrowed to this issue alone as a question of fact [68] and [72].

Importantly, “the court must look not only at the terms of the authority conferred upon the person taking the decision [to move someone who lacks capacity] but also at their motives for taking that decision” (§32). In addition, the fact that the person thinks it is in P’s best interests “may not suffice to prevent the move from being wrongful”. 

Schedule 3 of the Mental Capacity Act 2005 only makes provision for the Court of Protection to exercise its power if an adult is habitually resident in England and Wales, if the adult has property there, the matter is urgent, or the protective measures are temporary or limited in effect to England and Wales. An adult will be treated as habitually resident in England and Wales if their habitual residence cannot be ascertained, they are a refugee, or they have been displaced as a result of disturbance in the country of his habitual residence. 

Taken in the round, HHJ Richard Miller concluded that A’s habitual residence is in Spain (see §13 of the judgment). The judge considered that A did not have any intention to return to live in Wales when he had capacity, was integrated into life in Spain and had chosen to live there, he owned property in Spain, had a business and bank accounts in Spain, received healthcare in Spain, had obtained residency in Spain, and did not choose to leave Spain.

This meant that B and C “had no lawful authority to move A to Wales. He had refused to sign a lasting power of attorney […] His permanent removal from Spain was likely to be contrary to his wishes” (§14). However, and for the avoidance of doubt, “B and C did not act in bad faith” (§15). 

In concluding the judgment, the judge commented that “consideration should be given to the appropriate Tier of judiciary to which this case should be allocated in future”. 

Clearly consideration had been given to this because, when I observed the hearing in October, the case had been allocated to Mrs Justice Morgan (a Tier 3 judge).

2. The October hearing: Legal complexities and fitness to fly

Matters had moved on since the judgment. Counsel for the local authority told the court that enquiries have been made as to what options are available to A in Spain: “although he is said to be fit to fly with assistance there are no viable options from in Spain because he wouldn’t be able to afford privately funded care and the process for him to access publicly funded care is expensive …. It seems to us there isn’t any realistic way of him going back to Spain and unfortunately there aren’t any other care homes in the vicinity or close to his son. He is going to have to stay in his present care home even though he objects”.

This raises tricky technical and legal questions but, at this stage, the judge did not want to be side-tracked by this. She recalled a previous hearing (which I didn’t observe) in which the family had spoken about the situation in a “very affecting way….that is familiar to anyone in a family who found themselves navigating their way through inevitable deteriorating dementia…I would not want to be lost in what you [Counsel for the local authority] correctly identify as the technical and practical complexities.”

One of those complexities is under what legal mechanism the Court of Protection can authorise A’s deprivation of liberty in the care home. Another is that A has expressed a wish to go home to Spain but has also told his legal representatives that he does not want to return to Spain for an assessment or even to live in a care home. He wants to return to live at his previous home (somewhere that his wife told the court he has not lived for some years). 

The judge was also keen to get into the issue of whether A is actually fit to fly. Counsel for A told the court that, “[C, A’s son] [says] his father can’t navigate through an airport, can’t navigate onto an aircraft…I think the medics have taken a narrow view on the concept of fitness [to fly] and one concern is the emotional impact of this man going onto an aircraft”. In other words, A may be medically fit to fly, but that doesn’t necessarily mean that the process of flying would be safe or in his best interests. 

The judge therefore directed that further evidence about this matter be filed in time for a hearing in the first week of December. At this same hearing, the court will consider the legal complexities, and (hopefully) come to a conclusion as to A’s best interests.

3. The wish to go home

It seemed to me that this hearing was always intended to be a brief directions hearing. Indeed, given that the parties seemed to be in broad agreement as to the way forward, I got the impression that Morgan J had kept it in the list so she could reassure A’s wife and son that she was ‘keeping an eye on things’. 

However, I was quite struck by the way that the judge addressed A’s expressed wish to go home. Here’s a brief exchange from my notes (we’re not allowed to record hearings so this is unlikely to be verbatim). 

Judge: May I just ask you [Counsel for A] this. I don’t think I’m conscious of having seen a note of the visit yesterday. I wanted just to canvas this with you. The situation about wanting to go to Spain as expressed, and very firmly not wanting to go through the process of going to Spain for the purpose of being assessed for something that is not wanted – I put that inelegantly – is not a straightforward linear process for somebody whose thought processes, as I read the evidence, are affected by his illness. Are you able to help me with the link that [A] made in his head with the consequence of not wanting the process, if he still wanted the end result that is only possible by that process?

Counsel for A: My Lady I can’t and I don’t want to give evidence or offer a clinical opinion…I wonder whether it’s that straightforward desire to return home as we see so often in people with dementia. [A]’s home is Spain and I do wonder whether that’s at the core of what he’s saying…the level of his distress has not been as consistent but he has always been consistent about his wishes and feelings

Judge: And you’re not inviting me to make any further or other directions. I should safely treat it as the well-recognised emotional human basic wish to go home, in circumstances where home is understood and recognised as Spain? 

Counsel for A: That’s right.

This has lingered in my mind far beyond the conclusion of the hearing. 

What I mean when I say “home” can be contextual. When I was in Amsterdam for a few days in October, and I said at the end of our first day “let’s go home”, I didn’t mean back to the UK. I meant the apartment in which we were staying.

At the end of our visit, and when we were waiting in the airport, I said something like “I want to go home”. In that context, I did mean that I wanted to go back to the UK. In fact, I meant my own home, where I live. But as anybody who has ever flown into Manchester Airport will know, the process isn’t quite as fast as you’d hope, and getting to my own home was going to take some time. 

This shifting meaning of home need not be contextual. I still refer to my parents’ house as home even though I haven’t lived there for years. In that instance, home isn’t the place that I live but a place with strong emotional connection (and I’m lucky enough that those emotions are positive ones).

If, hopefully a long time in the future, I find myself diagnosed with dementia and living in a care home, I rather suspect that any request to go home will have two meanings. In the first instance, it’ll probably mean wherever it is that I’ve made my home. But there’s a strong possibility that it’ll also mean my childhood home, where I lived for eighteen years, and where I first felt both physically and emotionally safe. 

This strength of emotion has also been picked up on by the travel writer Jan Morris. At the very end of Trieste and the Meaning of Nowhere (my favourite of her prodigious output), she writes movingly about the places that have meant the most to her: “As for me, when my clock moves on for the last time, the angel having returned to Heaven, the angler having packed it in for the night and gone to the pub, I shall happily haunt the two places that have most happily haunted me. Most of the after-time I shall be wandering with my beloved along the banks of the Dwyfor; but now and then you may find me in a boat below the walls of Miramar, watching the nightingales swarm”. 

Home is a physical place but can also be understood as a physical representation of emotion. In A Room of One’s own^[ii], the political theorist Iris Marion Young makes the point explicit. Home, she says, is not just a place where we dwell “among things” but it is also a preservation of those things and those meanings. While it need not be a whole building (and here she was specifically concerned with nursing home) there is a need for “some individuated dwelling space […] a space in which one dwells among personally meaningful things”.

For many people with dementia, the emotional connection with home remains long after the dwindling of the memory that the physical space is no longer accessible. It can be distressing when care staff do not understand or are perceived of obstructing attempts to return to that place. But none of this changes the desire to be home, and none of this changes the possibility that the care home can become a place that one might see as home.

I know I’ll be unable to observe this hearing when it returns to court in the week commencing 1^st December 2025. It sounds like A will not be able to go to the home he desires. But I do hope something can be done to turn wherever he is living into somewhere he might consider a home. 

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.

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^[i] _{At §11 of HHJ Richard Miller’s judgment, this case is given the neutral citation number [2014] EWCOP 4. That is incorrect. The actual neutral citation number is [2014] EWCOP 43.} 

^[ii] _{This is my favourite of Young’s essays, and in some ways can be seen as a continuation of House and Home (another essay by Young). Here she agrees with other feminist theorists that home is often constructed at women’s expense because of an expectation that they nurture the home so their children and husbands can develop their own goals and subjectivities. Home can also be a locus for violence. But she nevertheless disagrees that home cannot be a useful and meaningful concept. In both essays she suffuses philosophy with personal experience (in House and Home she discusses being removed from her mother’s care; in A Room of One’s Own she discusses her father-in-law’s move to a nursing home following a stroke).}