What to do when P wants to return home abroad?

In Re UR [2021] EWCOP 10, Hayden J has set out a checklist for situations where the Court of Protection is to be asked to decide that a person should leave the country permanently.  The case concerned a 68 year old Polish woman.  It was framed as a s.21A challenge to the DoLS authorisation relating to the care home where she was residing, but evolved into a case where, by agreement, a plan was developed to secure her return to Poland where she had been expressing a strong and consistent wish to go.  She had family there, including a sister and niece; she also had the financial wherewithal to fund her own package of care, should that be required.

The judgment included a review of the case-law relating to s.21A and also the determination of best interests, which is sufficiently familiar not to require repetition here.   Hayden J had little difficulty in concluding that it was in UR’s best interests to return to Poland (and hence that the best interests requirement in the DoLS authorisation was not satisfied).  Of note is that, as the Court of Appeal did in AB, Hayden J expressly sought to draw upon both UR’s wishes and her feelings as distinct elements in the analysis (see paragraph 52). In passing, he repeated at paragraph 49 a judicial concern that the use of a balance sheet for these purposes risks becoming a “map without contours” (although he emphasised that the balance sheet in the case before him in fact was far more sophisticated than the term would suggest, and renamed it “analysis of the competing issues”).

Hayden J also had to consider whether UR would be prevented from leaving her care home and flying to Poland by operation of the lockdown regulations current as at January 2021; Hayden J was clear that she was not prevented from doing so by them, nor would the carers who would travel with her be breaching the regulations as they would have a reasonable excuse to accompany her, acting as they did in a work capacity.  Unsurprisingly, Hayden J was quick to praise the “selfless and dedicated professionalism” of the care home and manager, who had indicated that they would be prepared to travel with her, and self-isolate/quarantine upon their return.

Hayden J identified that it was possible and in UR’s best interests to return home, although there were a number of remaining practical issues to be addressed for the plan to be put in place.  More generally, he set a checklist for cases in the Court of Protection for permanent relocation from the jurisdiction of England and Wales:

  1. Liaison with the relevant Embassy/ Consulate (in the first instance) to ascertain what guidance and assistance can be provided;
  2. Evidence as to physical health to travel (GP);
  3. Evidence as to mental health to travel (psychiatrist);
  4. Legal opinion regarding citizenship, benefit entitlement, health and social care provision in the relevant country, and such other issues relevant to the case;
  5. Consideration of any applications that need to be made as a consequence of any legal opinion provided;
  6. Independent social work evidence regarding the viability of the proposed package of care in the relevant country if such evidence cannot be provided by the parties to the proceedings or a direction under section 49 MCA;
  7. Confirmation of travel costings from the commissioners of the care package, both in relation to P and any carers that may need to travel with them (who will pay?);
  8. Confirmation that the necessary medication/ care will be available during travel from the UK/ for the immediate future in the new country;
  9. Transition plan/ care plan, to include a contingency plan and how the matter should return to court in the event of an emergency in implementing the proposed plan;
  10. Best interest evidence from the relevant commissioners;
  11. Wishes and feelings evidence;
  12. Residual orders to allow the plan to be implemented, including single issue financial orders regarding opening/closing of UK bank accounts, the purchasing of essential items to travel (if necessary);
  13. Covid-19 considerations prior to travel (if applicable)

It should be noted that this approach applies where the individual is at the time of the judgment habitually resident in England and Wales, so the court is exercising its full jurisdiction over them; different considerations might arise if it was acting to give effect to a foreign order for return – see Re MN.

Helpfully, Hayden J also set out the full (anoymised) order that he had made, again as a template for future cases.

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