In The Health Service Executive of Ireland v IM & Anor  EWCOP 51, Knowles J has given a helpful summary of the approach to determining whether an adult with impaired decision-making capacity remains habitually resident within England and Wales.
The person in question, IM, was 92. She had been resident in Kent for over 55 years before moving to Ireland in September 2018, a little over 2 years prior to the matter coming to court. If, as the applicant (the Irish statutory body responsible for her) contended, she remained habitually resident in England and Wales, then issues as to her health and welfare were matters for the Court of Protection. Conversely if, as both IM’s litigation friend and Kent County Council, the respondents, argued, then such matters would fall within the jurisdiction of the Irish High Court.
The legal framework was summarised by Knowles J in terms that merit reproduction in full as a convenient summary of the statutory position and case-law:
28. “Habitual residence” is defined in neither the MCA nor the [2000 Hague] Convention. In An English Local Authority v SW and Others EWCOP 43, Moylan J (as he then was) held that the meaning to be given to habitual residence in the context of the Convention and the MCA should be the same as in other family law instruments such as the 1996 Hague Child Protection Convention and Council Regulation EC 2201/2003 (Brussels IIA) though he also acknowledged that different factors will be relevant and will bear differential weight (see -).
29. Thus, habitual residence is to be determined in accordance with the guidance given by the Supreme Court and the Court of Justice of the European Union in a number of recent cases. The following principles are key:
a) Habitual residence is a question of fact and not a legal concept such as domicile (A v A (Children: Habitual Residence) AC 1at );
b) The test adopted by the ECJ is the “place which reflects some degree of integration by the child in a social and family environment”. The child’s physical presence should not be temporary or intermittent (Proceedings brought by A (Case C-523/07) Fam 42at );
c) Consideration needs to be given to conditions and reasons for the child’s stay in the state in question (Mercredi v Chaffe (Case C-497/10PPU) Fam 22at );
d) The essentially factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce (see A v Aabove at );
e) Both objective and subjective factors need to be considered. Rather than consider a person’s wishes or intentions, it is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there – their state of mind (Re LC (Children) AC 1038at );
f) It is the stability of the residence that is important, not whether it is of a permanent character (Re R (Children) AC 76at ); and
g) Habitual residence is to be assessed by reference to all the circumstances as they exist at the time of assessment (FT v MM EWHC 935 (Fam)at ).
30. In Re LC (Children)(see above), Baroness Hale stressed the need to look at the circumstances which led to the move in question:
“The quality of a child’s stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then and later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another”.
31. In An English Local Authority v SW(see above), Moylan J made the following additional points:
a) The overarching test for habitual residence should be the same whether one is considering adults or children, although different factors may or will have differing degrees of relevance .
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  and .
c) Integration, as an issue of fact, can be an emotive and loaded word. It is not difficult to think of examples of an adult who is not integrated at all in a family environment and only tenuously integrated in a social environment but who is undoubtedly habitually resident in the country where they are living. Integration as an issue of fact can also raise difficulties when a court is determining the habitual residence of a person who lacks capacity .
d) The court “should not lose sight of the wood for the trees” .
32. Where an incapacitous adult has been moved from one jurisdiction to another, the question of the authority that the person effecting the move had to make it is also important. In Re MN (Recognition and Enforcement of Foreign Protective Measures) EWHC 1926 (Fam), Hedley J held that a move which was wrongful should not effect a change in the habitual residence of the incapacitated adults and should leave the courts of the country from which that person was taken free to take protective measures . In determining whether a decision is wrongful, the court must look not only at the terms of the authority conferred upon the person taking the decision, but also at their motives for taking that decision.
33. The fact that the person effecting the move has formed a subjective view that it is in P’s best interests may not suffice to prevent the move from being wrongful. Pursuant to s.4(9) and s.5(1)(b) of the MCA, a person making a decision on behalf of an incapacitous adult must “reasonably believe” the decision to be in their best interests. Thus, in Re QD (Jurisdiction: Habitual Residence) (No 1) EWCOP 56, Cobb J held that a decision by P’s children to move him from Spain to England was wrongful and that they could not rely upon the doctrine of necessity . The judge indicated that, whilst they may have believed that they were acting in P’s best interests, this was not a reasonable belief on their part.
Applying that framework to the facts before her, and noting, whilst she had had to try to resolve factual inconsistencies without hearing evidence, but that this was “not unusual in what is intended to be a summary process to resolve doubt as to this court’s jurisdiction to make decisions for IM” (paragraph 7), Knowles J found that IM was now habitually resident in Ireland. She identified that she assumed that IM had had capacity to make the decision to move unless it was established that she did not and whilst there was some evidence that her capacity fluctuated, there was a larger body of evidence suggesting that she had had that capacity. She also found that the decision to move was not one taken “with unreasonable pressure” from an individual, VS, with whom she had an undoubtedly complex relationship. As she noted at paragraph 42:
[…] He provided her with care and support as her medical records attested and she was wholly reliant upon him. I have no doubt that IM’s decision to move to Ireland was made with the knowledge that she needed VS to care for her and did not want to live in England without him. That relationship of dependency between an elderly vulnerable person and their carer is entirely common and understandable. Though it is difficult to see objectively why IM would wish to move from Kent where she was long established and had potent family connections, the need to be with VS is likely to have displaced these and other considerations when IM agreed to move. For IM, the most important consideration would have been that she would continue to live with VS, who would look after her as he had already done for many years.
43. No one involved with IM at the time was sufficiently concerned before the move to assist her in seeking advice support from statutory agencies. The move to Ireland was not achieved by stealth or made in an overly hasty manner. VS made no attempt to conceal the proposed move and IM discussed it freely with her GP and with FS over time. Her misgivings about moving expressed to the GP in August 2018 were understandable but do not, of themselves, suggest that IM had not voluntarily decided to move. Though that decision might have been unwise given that IM was leaving behind all she was familiar with, it was not without emotional and practical justification as far as IM was concerned.
Whilst VS had handled IM’s money in a way that aroused concern, Knowles J was “not persuaded that the desire to enrich himself at IM’s expense was the sole justification for the move to Ireland” (paragraph 44). Finally, Knowles J found that IM was both settled in Ireland and seemingly content to stay there.
Knowles J was invited to decide whether to consider to exercise the inherent jurisdiction to make decisions about her welfare given her British citizenship, on the basis that “[g]iven that her property was in this jurisdiction, Mr Rees QC [on behalf of the HSE] submitted that England and Wales remained the most appropriate forum in which to take decisions about IM.” However, the HSE acknowledged that, if she declined to exercise the inherent jurisdiction with respect to IM, the HSE envisaged bringing proceedings in the Irish High Court to determine IM’s best interests as to residence. If she were to remain resident in Ireland, the Irish High Court would be asked to approve steps to obtain the transfer of her property from England to the General Solicitor for Minors and Wards of Court in Ireland. On that basis, and
48. Having reflected on the HSE’s submission, I decline to exercise the inherent jurisdiction with respect to IM. To apply the inherent jurisdiction in this case as a means of making orders with respect to IM would constitute a subversion of the comprehensive regime available in the MCA for those who lack capacity to make decisions about welfare, property and other matters as IM clearly does. Further, it would improperly reserve to this court decisions about IM’s welfare when there is a robust and appropriate jurisdictional framework in Ireland for taking such decisions about a person who is habitually resident there.
Finally, the court addressed the fact that the OPG had applied to withdraw the proceedings relating to IM at a time when it knew that the issue of IM’s habitual residence was a matter unresolved by the court and did so without drawing that issue to the court’s attention. The court then acceded to that application without apparently recognising that the issue was unresolved. Although she declined to give formal guidance to avoid such a situation arising again, Knowles J observed that:
51 […] it seems self-evident to me that care should be taken in concluding proceedings on paper where there are unresolved issues which might potentially have implications for the court’s jurisdiction and, most importantly, the welfare of a vulnerable and incapacitous person. Further, it seems to me that parties to proceedings should properly draw the court’s attention to those unresolved issues when making applications which might bring the proceedings to a conclusion. Had the OPG done so, the hearing on 25 November 2019 might well have gone ahead.
The issue of when the habitual residence of an adult with impaired decision-making capacity may change is an important one, and not just in relation to overtly ‘foreign’ cases such as IM’s. For these purposes, Scotland and Northern Ireland are just as foreign; the framework outlined by Knowles J is therefore equally helpful as a checklist for considering intra-UK moves as it is for considering the position where a person has moved outside the UK.
The only note of caution that I would enter against both this judgment (and that of Cobb J Re QD (Jurisdiction: Habitual Residence) (No 1)  EWCOP 56 is that it is not immediately obvious why the doctrine of necessity would be relevant. As Sir Robert Nelson held in ZH v Commissioner of the Police for the Metropolis  EWHC 604 (Admin), “where the provisions of the Mental Capacity Act apply, the common law defence of necessity has no application. The Mental Capacity Act requires not only the best interests test but also specific regard to whether there might be a less restrictive way of dealing with the matter before the act is done, and, an obligation, where practicable and appropriate to consult them, to take into account the views of the carers. It cannot have been the intention of Parliament that the defence of necessity could override the provisions of the Mental Capacity Act which is specifically designed to provide specific and express pre-conditions for those dealing with people who lack capacity” (paragraph 44). Sir Robert Nelson also made clear in the same case (at paragraph 40) that a person can be acting by reference to the MCA (and be ‘covered,’ insofar as necessary by the defence in s.5 MCA 2005) whether or not they have specific knowledge of the Act at the time, so long as they reasonably believe at the material time are the facts which determine the applicability of the Mental Capacity Act. The decision in ZH was upheld by the Court of Appeal without considering these observations further, but it is suggested that they are a correct statement of the law. This being so, it is suggested that the correct analysis in deciding whether or not a move was wrongful was whether those concerned in bringing it about could have brought themselves within the scope of s.5 MCA 2005 at the time.