In Re AB  EWCOP 47, Senior Judge Hilder had to grapple with two difficult questions in the context of the Court of Protection’s international jurisdiction. The first was whether she should declare to be recognised and enforceable as ‘protective measures’ in England and Wales Letters of Guardianship granted by a court in New York State, and the second was their impact upon the question of whether the ‘no refusals’ requirement was met for purposes of the DOLS regime.
As so often in international cases, the facts were complex, but at their heart was a young woman with very significant disabilities, AB, resident at that point in a care home in London. She had been born in the US, and had lived there with her mother until November 2019 when she and her mother flew to the UK on one-way tickets at a point when the statutory authorities in New York State were investigating her ability to care for AB, and were taking steps to have the Letters of Guardianship (akin – it appears – to deputyship under the MCA 2005) revoked; an order had been made in the course of these proceedings that AB was not to be removed from the county where she was resident in New York State.
Not long after AB and her mother arrived, she was then taken to King’s College Hospital by ambulance; the hospital subsequently raised safeguarding concerns about her mother’s feeding practices. AB was considered medically fit for discharge but remained an inpatient for almost three months because there was no accessible home to which she could be discharged. She then went to a care home, initially accompanied by her mother, who apparently had nowhere else to live; the COVID-19 emergency led the care home to enforce restrictions on visitors. Police were involved in removing the mother. A DOLS authorisation was granted in respect of AB.
AB’s mother and the mother’s sister sought the immediate return of AB to the care of M. AB brought to the hearing on its second day the original Letters of Guardianship, bearing the raised seal of the US court. Although originally the Applicants relied on these orders as the basis for seeking AB’s return to her mother’s care, by the end of the hearing their position seemed to be that those orders could be disregarded. Intending that M and AB were now resident in the UK as a long-term arrangement, M – who acted in person – sought – an English welfare deputyship under the MCA 2005 effectively to replace the American Letters of Guardianship. The Respondents – AB (represented by the Official Solicitor) and the London Borough of Southwark – agreed that AB was still habitually resident in the USA, and any issues in respect of her long-term welfare fell to be considered first by the US courts. They contended that the jurisdiction of the Court of Protection was presently limited. They were further agreed that the question of recognition of the American Letters of Guardianship had to be determined first, before any determination of the s21A application could be made. The Official Solicitor invited the Court to refuse to recognise the American Guardianship orders on grounds of public policy but to provide for the matter to be referred to the US court as soon as possible, making in relation to AB herself only such orders as were immediately necessary for her protection pending further order of the US court.
Senior Judge Hilder undertook a detailed analysis of both the statutory provisions of Schedule 3 to the MCA (governing the international jurisdiction of the Court of Protection) and the case-law before reaching conclusions on the three key issues: (1) AB’s current habitual residence; (2) whether the court could refuse recognition of the Letters of Guardianship; and (3) what – if any – ability M’s status under the Letters of Guardianship had on the operation of the DoLS regime.
On the facts of the case, Senior Judge Hilder was satisfied that M had moved AB out of the jurisdiction of the court in New York State “consciously in a bid to avoid its exercise” (paragraph 83), such that:
- M’s decision to move AB to the UK was therefore not a proper exercise of legitimate powers, and not effective to change AB’s habitual residence.
- Moreover, AB’s circumstances since her arrival in the UK cannot be said to have settled such that her habitual residence has changed by passage of time notwithstanding the bad faith in the arrangements for her arrival. Any support that AB has received from wider family has been extremely transient. She lives in a care home precisely because she had no other appropriate accommodation. She is not integrated into the community beyond the care home placement.
This meant that AB remained habitually resident in the United States of America (indeed, strictly, although Senior Judge Hilder did not have to make this determination, presumably in New York State – a determination which could be of some relevance in the domestic American proceedings).
Recognition and enforcement
Senior Judge Hilder noted that she was:
89. […] acutely conscious of the mandatory nature of paragraph 19(1) of Schedule 3 and the requirement to “work with the grain of the order” of a country whose legal systems, laws and procedures are closely aligned to our own. It has not been suggested by any party that either the Erie County Surrogate Court or the Monroe County Surrogate Court is anything other than “an experienced court with a sophisticated family and capacity system.”
The Official Solicitor having sought that the mandatory recognition requirement be disapplied on the grounds of public policy, Senior Judge Hilder had sought clarification of the “public policy” in issue. The Official Solicitor identified the policy of “judicial comity”: the argument being that:
91. […], if M knew that her care of AB was being investigated with the possibility of steps to discharge her guardianship and she left the USA deliberately to avoid that possibility, recognising her guardianship now would amount to failure of judicial comity with the Monroe Surrogate Court. In effect, the determination of issues put before Monroe Surrogate Court has been thwarted by actions of M taken in bad faith. Recognition of the guardianship authority in the face of frustrated proceedings to discharge it would endorse the bad faith of M. It is not the measure (ie the Letters of Guardianship) which is manifestly contrary to public policy but rather the recognition of it in circumstances where the US court was actively engaged in the process of considering whether the measure should be discharged immediately before AB’s was removal from its jurisdiction. (emphasis added)
Senior Judge Hilder had also asked whether:
- The recognition application could or should be adjourned, or determined on an interim basis. The Official Solicitor’s position was that such would be contrary to the mandatory nature of paragraph 19(1) of Schedule 3. Rather, the Official Solicitor argued, “[i]f the purpose behind either adjournment or interim decision was to revisit the question of recognition in the light of the US court’s determination of the discharge petition, a better approach would be to require a new application for recognition if the discharge petition failed. Such application would then be free of any question of ‘bad faith’” (paragraph 92).
- Whether the court could or should recognise the US Letters of Guardianship but then also suspend them. Mr. McKendrick (Leading Counsel for the Official Solicitor) professed himself “not at all confident” that this court has such power, although he also properly acknowledged that paragraph 128 of the Lagarde Report seemed to suggest that this might indeed be permissible.
Senior Judge Hilder held that it was important to consider the effect of recognising the Letters of Guardianship granted to M, which would be to recognise that M has authority to decide where AB lived and how she was cared for. In reality, Senior Judge Hilder noted, “M would decide that AB should immediately leave the care home to live with her, whatever the insecurities of M’s own position and the limitations of her resources to provide care at the moment” (paragraph 95). Against this backdrop, and in circumstances where the American court has already been asked to determine an application to revoke M’s authority to make such a decision, and had only been prevented from doing so by M removing herself and AB from its jurisdiction, Senior Judge Hilder held that it was clear that:
96. […] it would be contrary to the requirements of judicial comity to recognise now that very authority which the American court has been asked to review. I have come to the firm conclusion that it is clearly right and just, at this point, to disapply the requirement of mandatory recognition on the grounds of the policy of judicial comity. Such conclusion is nota reflection on the merits of the Letters of Guardianship themselves, or the powers of the US court to grant such Letters. Rather, it is a reflection of the circumstances in which the application for recognition comes to be determined by this court. (emphasis in original)
Senior Judge Hilder therefore dismissed the application for recognition. She emphasised that she was not determining whether the Court of Protection could recognise the foreign protective power and then immediately suspend it – as she said at paragraph 96: “[t]hat decision will likely fall to be made in the circumstances of another case, on another occasion.” She also made clear that there was nothing in the dismissal of the current application for recognition which prevented a further application for recognition of the same Letters of Guardianship in the light of any future decision by the US court.
The DoLS authorisation
As Senior Judge Hilder noted,
101. On a narrow interpretation of paragraph 20 of Schedule A1, M does not come within the class of persons whose valid decision could mean that AB failed to meet the ‘no refusals’ requirement because M is not and never has been “a donee of a lasting power of attorney” granted by AB or “a deputy” within the meaning of the Act.
However, this was not the end of the story:
102. […], the authority encompassed by Letters of Guardianship granted by a US Court is clearly comparable to English deputyship (it would appear, even wider.) Following the principle of recognition by operation of law, as explained at paragraph 116 of the Lagarde Report, M was in an equivalent position to an English deputy with authority to determine residence, at least until she took a step towards enforcement. A narrow interpretation of paragraph 20 may therefore be vulnerable to criticism of inconsistency with the mandatory nature of the recognition provisions, and a wider interpretation – which considers whether M falls within the definition of persons who may make a valid decision for the purposes of the ‘no refusals’ requirement- ought to be considered.
M had taken steps towards enforcement of her Letters of Guardianship, and, in the course of that application, not only had enforcement refused but also recognition. In the circumstances, and whether a narrow or wider interpretation of the ‘no refusals’ requirement was adopted, any decision made by M may have taken that AB should live with her and not at B Care Home is not such as to count as a ‘valid decision’ for the purposes of the ‘no refusals’ requirement.
Senior Judge Hilder also had little hesitation in dismissing summarily the challenge that AB’s current living arrangements were not in her best interests.
The balance of the judgment was then taken up with a detailed series of steps required to ensure that the courts of New York State were put in a position properly to consider AB’s welfare, and to secure AB’s welfare in the interim.
Previous judges considering Schedule 3 have had cause to discuss the possibility that recognition and enforcement of a foreign protective measure might fall to be refused on the basis that it would be manifestly contrary to public policy (in particular Baker J in Health & Safety Executive of Ireland v PA & Ors  EWCOP 38. However, no previous judge has reached a conclusion that such a step should be taken, perhaps because it would have involved impugning the expertise and/or good faith of a foreign court. What is unusual about this case, and perhaps explained its outcome, was that Senior Judge Hilder, by declining to recognise and enforce the Letters of Guardianship was, in effect, seeking to give effect to the steps being taken before the courts of the State of New York to revoke those Letters.
One other point of no little interest is in relation to ‘no refusals,’ the logic of Senior Judge Hilder’s approach in paragraph 102 suggesting strongly that a guardian appointed by a Scottish court would be able to prevent an authorisation being granted by seeking to decide that the individual should reside elsewhere. This is logically impeccable, and undoubtedly important as regards intra-UK relationships, but it does mean that more focus might in due course be required as to whether a guardian under the Adults with Incapacity Act has the authority to deprive an individual of their liberty. It is not at all clear that the orders routinely made in the Sheriff’s Courts in Scotland meet the requirements of Article 5 ECHR as regards (for instance) the question of whether the individual has a mental disorder of a nature and degree warranting detention. It is therefore suggested that in any situation where a guardian purports to exercise their power so as to refuse a DoLS authorisation that the supervisory body in question is careful then to identify whether it is being asserted that the guardian has the power to authorise the deprivation of liberty to which the person is subject, either at the care home or elsewhere.
 I.e. the Explanatory Report to the 2000 Hague Convention on the International Protection of Adults, the Convention to which Schedule 3 to the MCA 2005 gives effect (notwithstanding that it is has not been ratified in respect of England and Wales). Paragraph 128 provides that “This Article …. sets out the principle that the measures taken in a Contracting State and declared enforceable in another ‘shall be enforced in the latter State as if they had been taken by the authorities of that State.’ This is a sort of naturalisation of the measure in the Contracting State where it is to be enforced. The authorities of the requested State will thus be able to stay execution of a placement measure taken abroad in cases where they would have been authorised to do so for a measure taken in their own State….”
 This is also the same in relation to any other foreign ‘deputy equivalent,’ but there is quite a regular ‘trade’ in individuals being placed in England by Scottish guardians, so this issue is on my mind.