Seize the day, or lose the person

In  FT v MM and RM [2019] EWHC 935 (Fam), Russell J has highlighted a real and problematic difference between the ability of the English courts to protect adults removed from this jurisdiction as compared to their ability to protect children.

In 2016 a child with profound learning disabilities, RM (a US citizen), had been removed by his father from this jurisdiction to the United States in face of an order to the contrary from the Family Court.  In proceedings started shortly before RM turned 18, his mother sought his return to England & Wales; his father participated sporadically but made clear that he would not bring him back as he believed it to be in RM’s best interests to remain living in the USA.  Permission had not yet been granted to bring proceedings in the Court of Protection, so matters were considered by the High Court under its inherent jurisdiction.

Russell J accepted that the High Court should take the same approach to the determination of RM’s habitual residence as had been taken by Munby J in Re PO [2013] EWHC 3932 (COP), i.e. that the doctrine of perpetuatio fori does not apply, even in the case of wrongful removal, and that habitual residence fell to be at the point when the matter was before the court, as opposed to how they might have stood at the point of removal.   She therefore accepted that RM was, now, habitually resident in the United States.  She also noted that, as RM was a US citizen, it was not obvious what jurisdiction the High Court could be said to retain in light of the finding of the change of habitual residence (by contrast with the position in Al-Jeffery v Al-Jeffery (Vulnerable Adult: British Citizen) [2016] EWHC 2151 in which Holman J confirmed for the that the High Court can exercise its inherent protective jurisdiction over a vulnerable British adult on the basis of their nationality, even if they are not habitually resident in England and Wales).

Even were RM to be habitually resident in England and Wales, Russell J found, there was no readily available legal mechanism to seek to compel his return, the US authorities being neither willing nor able to take steps to return a US citizen to the UK in such circumstances.  Directing herself by reference to Re MM (A Patient) [2017] EWCA Civ 34, she noted that further court orders “would appear to have little or no prospect of success, and in any case, there are good grounds for finding that a return to this jurisdiction are not in RM’s best interests unlike MM in the above case.”

The case therefore stands as a fresh reminder that where an adult has been abducted from England & Wales – including across the border to the ‘foreign’ jurisdiction of Scotland – it is vitally important to ensure that the court (the Court of Protection if they lack capacity, the High Court if they have capacity and are vulnerable) is approached as soon as possible so that consideration can be taken as to what steps should be taken without the added complication of a potential loss of jurisdiction through simple loss of time.

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