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Cross-border cases and the inherent jurisdiction

A Court of Protection judge recently considered applications for welfare orders for a man in his sixties made by his children who had brought him back from Spain, against the wishes of his second wife. Sophy Miles analyses the outcome.

In QD (Jurisdiction: Habitual Residence) [2019] EWCOP 56 the children of a man in his sixties, living in Spain with his second wife, KD, had become concerned about the care that KD was providing. KD started proceedings in Spain but before these had concluded, QD's children brought him to England and moved him to a care home.  

The day after QD’s arrival his children applied to the Court of Protection seeking a range of welfare orders including:

  • that he should live in a care home,
  • that he should not return to Spain and
  • that he should only have supervised contact with his wife.  

KD opposed all the applications and raised QD’s habitual residence as a preliminary issue.

Schedule 3 MCA 2005 explains the limits of the Court of Protection's jurisdiction. The Court will only have jurisdiction in relation to:

  • An adult habitually resident in England and Wales
  • An adult’s property in England and Wales
  • An adult who is present in England and Wales or who has property there if the matter is urgent, or
  • 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/her.

Habitual residence is not defined in the MCA. It is “A question of fact to be determined in the individual circumstances of the case’ - Re MN [2010] EWHC 1926 (Fam). In that case, Hedley J noted that wrongful removal of children did not change their habitual residence – wrongful removal of an adult should have the same consequences.

QD’s children argued that he was now habitually resident in England, that the move from Spain was not wrongful but was justified by the common law doctrine of necessity.  

Alternatively, the court should accept jurisdiction on the basis that the matter was urgent. If the Court did not have jurisdiction under the MCA, the inherent jurisdiction could be invoked.   

QD (who was represented by the Official Solicitor) and KD argued that QD was habitually resident in Spain.

Cobb J concluded that QD was habitually resident in Spain and was influenced by the following factors:

i) that when he had capacity, QD chose to live in Spain, and this was (it appears) to have been his permanent home;

ii) QD has now lived in Spain for many years;

iii) QD has more than one property in Spain; 

iv) QD received health care in Spain;

v) QD was integrated into life and a community in Spain where he appeared to have a social life;

vi) it is conceded by the Applicants that prior to 3 September 2019, QD was habitually resident in Spain;

vii) it is, of course, the country in which his wife continues to live; moreover, she had sought to regularise the care arrangements for him in Spain by initiating proceedings for legal guardianship in that country some weeks before QD was relocated to England.

Cobb J went on to say at [29 that “I am further influenced by the fact that, as an agreed fact, QD's move to this country was achieved by stealth. I do not find that TD and BS can avail themselves of the 'doctrine of necessity', to convert what was a wrongful act on their part into a justified act.”

In relation to urgency, he stated at [30] that "I am absolutely clear that it would not be appropriate for me to assume jurisdiction based on 'urgency' (per schedule 3, para.7(1)(c) MCA 2005); exercise of jurisdiction based on para.7(1)(c) would be justified in my view only where substantive orders are necessary in order to avert an immediate threat to life or safety, or where there is an immediate need for further or other protection."

He rejected the submission that the inherent jurisdiction should be invoked:

"Thirdly, I am equally clear that it would not be appropriate for me to deploy the inherent jurisdiction here as a means for making substantive orders in relation to QD; there is a comprehensive and robust statutory scheme available in the MCA 2005, which covers (in section 63 and schedule 3) this very issue. To apply the inherent jurisdiction here would be to subvert the predictable and clear framework of the statute in an unprincipled way."

Cobb therefore made a protective measures order under Schedule 3, para 7(1)(d), to authorise QD’s residence at the Pines and deprivation of liberty there until such time as the Spanish authorities decided what to do.

Comment

This case is both a helpful reminder of the limits of the Court's jurisdiction and a cautionary tale warning that attempts to subvert it - especially by stealth - will not be met with sympathy. Of course, as the judge acknowledged, it remained quite possible that the decision of the Spanish authorities may well be to confer jurisdiction on the English court.

This is one of several recent cases - including the judgment of Lieven J in KR - which stress the limits of the use of the inherent jurisdiction and caution against stretching the "great safety net" too far.

Sophy Miles is a barrister at Doughty Street Chambers. She can be contacted on 020 7404 1313 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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