In Irwin Mitchell Trust Corporation Ltd v KS & Ors [2025] EWCOP 7 (T2), Senior Judge Hilder had to grapple with a question that had not been the subject of a previous reported decision: what can the Court of Protection do in respect of a child, whose property and affairs (including assets in England & Wales) are subject to deputyship, but who is no longer habitually resident in England & Wales? The Official Solicitor argued that the court no longer had jurisdiction to determine the deputy’s request for authorities in respect of expenditure from her funds. The deputy sought to argue that it did, either by virtue of the operation of s.47 MCA 2005 (importing the powers, rights and privileges of the High Court), or on a pragmatic basis.
Senior Judge Hilder found her own route to maintaining the court’s jurisdiction, drawing on the provisions of the 1996 Hague Convention (the counterpart for children) to the 2000 Hague Convention on the International Protection of Adults, sometimes known as Hague 34.
45, It is accepted that the appointment of the Deputy for KS amounts to a protective measure for the purposes of Hague 34. It is also accepted that the jurisdiction issue is not a best interests decision. It is clear, however, that whether or not the Court of Protection retains jurisdiction over KS’s property in England will have a very significant impact on the ability of KS and her parents to live the life they choose.
45. The pragmatic argument in favour of the Court of Protection retaining jurisdiction is attractive on the facts of this case, but pragmatism is not a proper basis for deciding an issue about jurisdiction. Other facts may point a different way.
46. The s47 argument: I agree with Mostyn J at paragraph 27 of R(SM) v Court of Protection that “there is no opacity in the language of s47(1).” The words are indeed “completely clear”: the statutory conferment on the Court of Protection of “the same powers, rights, privileges and authority as the High Court” is “in connection with its jurisdiction”.
47. I acknowledge that Mostyn J, having noted the difference in the heading of this section as between the Act (“General powers…”) and that which had earlier been proposed by the Law Commission’s draft Bill (“Supplementary powers…”), observed that the enacted version’s reference to ‘powers’ is not specified as was the Bill and “nor were they confined merely to matters incidental to the court’s jurisdiction.” However, I do not understand him to have been suggesting that s47 somehow extended the Court of Protection jurisdictionto encompass everything that the High Court does or could do, in particular “inherent power and authority to make orders concerning the property in England and Wales of people lacking capacity (including children who are likely to lack capacity when they reach majority)”. The inclusion of the words “in connection with its jurisdiction” has a limiting purpose.
49. Hague 34: it seems to me that the greatest assistance in understanding how s18(3) and Schedule 3 of the Mental Capacity Act 2005 fit together in respect of KS is derived from Article 14 of Hague 34 and the associated commentary in the Handbook and the Lagarde Report. Article 14 is explicit in providing that measures remain in force according to their terms, even if the basis of their jurisdiction has been eliminated by a change of circumstances. The supporting documents both address specifically the very situation which has occurred in this matter, namely a change of habitual residence from a Contracting State to a non-Contracting State:
a. paragraph 4.11 of the Handbook spells out that “nothing …stands in the way of retention of jurisdiction by the authorities of the Contracting State under their non-Convention Rules.”
b. paragraph 42 of the Lagarde Report echoes that position: “nothing stands in the way of retention of jurisdiction, under the national law of procedure, by the authority of the Contracting State of the first habitual residence which has been seised of the matter.”
50. Nothing in Mr. Dew’s written or oral submissions persuades me that Article 14 is not in fact the starting point for considering KS’s position.
51. The question then becomes what is the jurisdiction of England and Wales which is retained? KS is not in the same position as children generally. She is in the sub-group of children who are likely to continue to lack capacity to manage their property and affairs once they attain majority. For that sub-group, when it comes to management of their property and affairs in England and Wales, Parliament has created a jurisdiction which is outside the Family Law Act 1986 and the Family Court. Accordingly, after careful consideration, it seems to me that the answer is embedded in the question – “retention” refers to continued possession, use or control of something which was held before. What existed before KS’s habitual residence changed to India was not (as Mr. Dew sees it) either the jurisdiction of the Family Court or of the High Court. It was the jurisdiction of the Court of Protection under s18(3) of the Mental Capacity Act 2005.
52. This conclusion is reinforced when checked against the apparent purpose of Article 14. As set out at 8.2 of the Handbook, the aim is “providing a degree of security and continuity for children and their families. Families need not fear that a move to another jurisdiction will, in and of itself, alter the arrangements that have been made…. Article 14 also guards against “gaps” in the protection of children resulting from factual changes in their circumstances.” This aim is just as relevant for children being moved (for it is rarely, if ever, theirdecision to move) to a non-Contracting State as it is for moves between Contracting States. And it is just as relevant for the sub-group of children who are likely to lack capacity to manage their property and affairs when they attain majority.
53. There is however a caveat in Article 14 – “so long as the authorities which have jurisdiction under the Convention have not modified, replaced or terminated such measures.” The explanatory documents are less clear in their consideration of a move to a non-Contracting State but paragraph 43 of the Lagarde Report (in the paragraph next following such specific consideration) suggests that it is not distinguished from a move between Contracting States. It also acknowledges risk in an approach which encompasses potentially competing jurisdictions:
“This change of jurisdiction of the authorities in cases of a change of the child’s habitual residence runs the risk that the authority which has newly acquired jurisdiction might very quickly take a measure which will annihilate that which was previously taken ….. Certainly, the measure taken in the State of the former habitual residence ought to be recognised in the State of the new habitual residence …and remain in force there so long as it has not been modified or replaced”
54. The evidence before me at present is that “India will likely recognise that England has jurisdiction over assets located within its territory” [F29], albeit that this is clearly distinguished from any implication that India will also recognise IMTC in its role as Deputy. On the other hand, there are two potential routes to seeking recognition set out in the evidence, as well as a clear statement that “there is no strict legal requirement for Indian courts to approve the continuation of the deputyship in England unless a question of KS’s guardianship, control over KS’s assets or a related issue is to be adjudicated upon in an Indian court.” [F32] No such prospect is presently apparent.
55. I am concerned that the position taken by KS’s Litigation Friend as to jurisdiction of this court would cause unworkable difficulties. It is the deputyship appointment, as distinct from the exercise of it, which is the protective measure. Being, as accepted, an appointment which continues (until termination either by the Court or the death of the protected person), how is a deputy to know the limits of their authority when habitual residence changes? Sometimes, and in this case, such a change is not a matter of a clear fixed date – at least until hindsight is available. In contrast, my conclusion (that the Court of Protection retains jurisdiction) gives clarity consistent with the aim of Article 14 of Hague 34, without offending against the position of KS’s new state of habitual residence (according to the evidence before me).
56. As to “the connecting factor” for jurisdiction of the Court of Protection in respect of the property of persons under the age of 16 who are likely still to lack capacity to make relevant decisions when they reach the age of 18, it is unnecessary for me to seek to formulate any generality beyond KS’s own circumstances. The Court of Protection undoubtedly had jurisdiction over KS’s property in England and Wales when the Deputy was appointed; and it retains that jurisdiction after KS’s habitual residence has changed to India, at least until a contrary step is taken in the new state of habitual residence.
57. I acknowledge that the conclusion may not be the same if, for example, a child had never been habitually resident in England but was awarded damages in England in respect of injuries sustained whilst on a brief holiday here. That situation will need to be considered further if/when it arises.
Comment
This case is a helpful reminder that, whilst the Court of Protection has no welfare jurisdiction over those under 16, it can, however, exercise its jurisdiction in relation to the property and affairs of a person under 16 if the court considers it likely that they will still lack capacity to make decisions in respect of the relevant matters when they reach 18.[1]
In KS’s case, it is unsurprising that Senior Judge Hilder wished to find a route to maintaining the court’s jurisdiction, as otherwise her property and affairs would remain in limbo. It is of note that in reaching her destination, Senior Judge Hilder implicitly (and I would suggest correctly) identified that Schedule 3 was a red herring. Schedule 3 cloaks the Court of Protection with jurisdiction in cases with an international element where it does not already have jurisdiction (see para 7(1), providing for the court to discharge its functions “insofar as it cannot otherwise do so.”). Here, the court had appointed a deputy to manage KS’s property and affairs, in England & Wales, at a point when she was habitually resident in England & Wales, and was therefore discharging functions under ss.16 and 18(3). Schedule 3 therefore simply did not enter into it, nor did the carve-out in Schedule 3 for children falling within the scope of Hague 34.
Arguably, one might think that the real question before Senior Judge Hilder was not really whether Court of Protection retained a jurisdiction to authorise the deputy to take relevant steps. As HHJ Burrows had identified in Re P (Property & Affairs Deputyship: Jurisdiction) [2024] EWCOP 77 (T2) (a case decided between the hearing and the date of the judgment in KS’s case), the very fact that the Court of Protection has made a deputyship order means that it must retain a jurisdiction to vary or revoke the order. Rather, the real question before Senior Judge Hilder was whether it was appropriate for the Court of Protection to seek to continue to exercise that jurisdiction in relation to KS’s property and affairs. Until and unless an alternative method of securing KS’s interests was identified – for instance some form of Indian authority which could be recognised and enforced in England & Wales – it might be thought to be entirely obvious that it was right that the court should continue to exercise its jurisdiction.
[1] MCA 2005 s18(3), although this does not include making a will on behalf of the person, something which can only be done in relation to a person aged 18 or over (MCA 2005 s18(2)).
