The case of Neath Port Talbot Country Borough Council v CK & Ors [2025] EWCOP 47 (T3) is the sequel to this decision, in which HHJ Miller set out a helpful worked example of determining whether a person’s habitual residence has changed following a loss of capacity, and where the move has not been at the behest of professionals, but family members. At the point of delivering that judgment, HHJ Miller concluded that – on the facts of the case – the subject of the proceedings, CK, accommodated in a care home in Wales, was still habitually resident in Spain. By the time the matter came before Morgan J for determination as to CK’s best interests as regards his future residence and care arrangements (including a potential return to Spain), the issue of his habitual residence came back to the fore.
As Morgan J identified:
18. This court has in my view to be careful not either inadvertently to approach its task as if acting as an appellate court in respect of the decision made on 10 June, or to substitute its own different decision on the same factual situation because it sits more easily with a best interests analysis. I recognise of course that as the determination stands, this Court retains a temporary jurisdiction pursuant to Schedule 3 MCA 2005 (7)(1)(d) but in circumstances where what is contemplated in terms of living and care arrangements for CK is for the rest of his lifeit seems to me that it would be stretching a reasonable understanding of what is intended to be understood by the word ‘temporary’ to embrace ‘life-long’
19. Both the applicant and the litigation friend at this hearing remind the Court that there is authority for the proposition that the Court of Protection must keep the issue of habitual residence under review to ensure that it retains jurisdiction at the date of the final substantive hearing, as to which reliance it place on London Borough of Hackney v P [2023] EWCA Civ 1213, [116]; Re LM[2023] EWCOP 69, [37-38] and on behalf of the applicant to TD BS v KD QD [2019] EWCOP 56 . Developing on from that submission, the Litigation friend submits that the doctrine of perpetuatio fori does not apply to cross-border incapacity cases regardless of whether or not the 2000 Convention applies and in support of and to illustrate that submission relies on , Re O (Court of Protection: Jurisdiction) [2013] EWHC 3932 (COP), [2014] Fam 197, [21]. I accept that it is right that the jurisdiction of the Court may change during the duration of proceedings. What is more problematic in relation to those authorities to which the court’s attention was directed in argument at this hearing when considering the obligation that the Court of Protection must keep under review the issue of habitual residence, is that it was noteworthy that in each of those authorities cited it was so as to ensure that it retains jurisdiction and not, as must be the situation with CK, so as to consider a situation where a determination that Habitual Residence is elsewhere with consequence that the court does not have jurisdiction (other than temporary protective ). It follows that the court is not reviewing whether it retains it but considering whether the factual landscape has in the intervening period altered such that CK’s habitual residence now lies in (England and) Wales. I note that in QD [2019] EWCOP 56 in which Cobb J as he then was in strikingly similar factual circumstances contemplated at para [32] not the prospect of a change in the factual basis which might cast habitual residence in a different light and lead to the English Court thereby acquiring jurisdiction but that it was possible that it might be acquired by the conferring of jurisdiction on the courts of England and Wales by Spain. It was common ground amongst counsel at this hearing that there was no authority in which the situation was as presents here.
20. By reference to The Practical Handbook on the Operation of the 2000 Protection of Adults Convention counsel for the applicant developed her submission, supported by the litigation friend that it is permissible and appropriate to review, by considering whether there has been a change in the Habitual residence of the adult concerned. In particular there is express consideration within paras 4.13 et seq What happens when the “habitual residence” of the adult changes? of the prospect that such a change may be including during pending proceedings for a measure of protection. (Explanatory Report to the convention para 51 ). Given the clarity of analysis which appears in QD I have paused to reflect carefully on whether I should accept that, HHJ Miller having reached the conclusion he did in June of this year, it is in the peculiar circumstances of this case right for me to look again at CK’s Habitual residence now. I have narrowly concluded that it is and whilst there is much that is on all fours factually with the situation facing Cobb J in QD, very different here is the very long passage of time between the reaching of the conclusion and the best interests decision to be taken at this hearing. I accept Counsel’s joint submission that it is permissible and appropriate to review (in the sense discussed, rather than by critique of HHJ Miller’s original judgment) the question of CK’s Habitual residence. That review is properly done by consideration of significant changes in the factual landscape or the emergence now, of facts which were not known in June 2025.
Adopting that approach, Morgan J found that CK was now habitually resident in England and (more to the point) Wales. This made her task jurisdictionally very much easier. On the facts of the case, the best interests decisions it now fell to take to take on the basis of the ‘full original jurisdiction’ of the Court of Protection in relation to CK were relatively straightforward. Morgan J’s closing observations on the case resonate strongly with my experience:
35. It is not uncommon, sadly, for families to find themselves in situations where one of their members is diagnosed with conditions similar to CK, or is otherwise in failing health and where there are questions over their capacity, and that person is living outside of England and Wales. The parties have been at pains to emphasise that neither at this hearing or before HHJ Miller has any party invited the court to determine that the move of CK from Spain to the Z care home was made in bad faith. It is explicitly accepted by the Local Authority at this hearing hat EK and JS did what they considered to be in CK’s best interests. CK’s circumstances have however illustrated all too clearly how the well intentioned can go wrong. At the outset of this hearing the litigation friend made the following overarching submission which encapsulates the wide anxiety: ‘While the litigation friend considers that CK’s habitual residence will revert to England and Wales, the litigation friend is troubled by a conclusion which ostensibly authorises CK being removed from the country where he had chosen to live, and the perverse incentives this may create for future individuals to avoid processes which protect vulnerable adults internationally. It should be emphasised that the circumstances confronting this court are unusual and confined to their own facts’.
Morgan J was asked to give guidance as to future cases; she expressed reservations about doing so, but the observation set out below are undoubtedly of relevance for any cross-border case:
37. Consideration of capacity at an early stage should be at the forefront of everyone’s mind. Specifically, if what is under consideration involves a decision to leave one country and go to live in another, the persons capacity to decide that, must be considered at an early stage. There may be all sorts of instances in which the family members doing what they think is right, regard it as the best – or perhaps even the only – decision to be made, but that does not obviate the need to ask the question, does the person have the capacity themselves to make the decision.
38. If a public body becomes aware that there is a prospect of a person returning from a country where they are resident to the United Kingdom to be placed within a registered care setting, that public body should alert those involved of the need for the person to consent to that process and to follow the laws of the country in which they are habitually resident.
39. Registered care settings, should, before granting admission to a person who is resident in another country, satisfy themselves either that the person is consenting (i.e. that they have the capacity so to consent) to a return to the United Kingdom and placement within a care setting or that the return follows a lawful process in the country in which they are resident or there is a valid substitute or surrogate decision making power governing the process under that country’s law.
40. Where a person has moved from one jurisdiction to another in circumstances such as CK did here, supervisory bodies for the purposes of Schedule A1 of the MCA 2005 should not authorise a deprivation of liberty by means of the administrative process of DOLS but should make urgently an application to the Court of Protection, within which application should be highlighted for the purposes of gatekeeping decision making that there is or is likely to be an issue to be determined in respect of habitual residence.
Comment
This decision is important for reminding practitioners that the position in relation to adults lacking capacity is very different to the position regarding children, and it is not possible to ‘freeze’ habitual residence by initiating proceedings. It is also helpful for flagging the relatively recent (2024) Practical Handbook to the 2000 Hague Convention on the International Protection of Adults. Despite the fact that for complicated and rather unsatisfactory reasons England & Wales is not a ‘Hague State,’ the way in which Schedule 3 to the MCA 2005 mirrors the Convention and the body of cases that have been decided under Schedule 3 means that it was possible for me to feed in that experience to do his bit to make the Practical Handbook actually practical.
One small caveat to / clarification of Morgan J’s otherwise admirably clear judgment. To the extent that paragraph 40 could be read as suggesting that a local authority cannot authorise the deprivation of liberty of a person who is not habitually resident in England in Wales, that is incorrect: the requirement for DoLS purposes is simple physical presence in the hospital or care home; if the person is not ordinarily resident in the area of a supervisory body applying the rules set out in Schedule A1, then the supervisory body will be that for the area where the hospital / care home is located. However, what Morgan J meant – Isuggest – is that a local authority must be astute to the potential that there is an issue as to whether the person has been brought to England & Wales in circumstances meriting further consideration; at that point, they should simply close their eyes to that issue and authorise the deprivation of liberty, but ensure that steps are taken to resolve the issue.
