Court of Protection's jurisdiction to recognise foreign protective orders clarified

Practical Law UK Legal Update Case Report 4-616-4168 (Approx. 3 pages)

Court of Protection's jurisdiction to recognise foreign protective orders clarified

The Court of Protection's jurisdiction to recognise and enforce foreign protective measures under Schedule 3 to the Mental Capacity Act 2005 has been clarified (Health Service Executive of Ireland v PA and others [2015] EWCOP 38).

Speedread

The jurisdiction of the Court of Protection to recognise and enforce foreign protective measures under Schedule 3 to the Mental Capacity Act 2005 (which implements the obligations under the Hague Convention on the International Protection of Adults 2000 into the law of England and Wales) has been clarified by the court.

The Court of Protection (COP) has clarified its power to recognise and enforce foreign protective measures under Schedule 3 of the Mental Capacity Act 2005 (MCA 2005). The court heard an application relating to three vulnerable individuals habitually resident in Ireland but who had been detained in England because no suitable facilities were available for them in Ireland. Although they could be detained under the Mental Health Act 1983, the Irish High Court wished to retain jurisdiction over them so that future decisions about their care could be made in Ireland. The context is outside the scope of Practical Law Private Client (as it relates to applications to recognise detention orders made by the Irish High Court), but the judge's analysis of Schedule 3 extends to protective measures generally, not those solely dealing with deprivation of liberty.

The COP judge (Baker J) clarified the following points about Schedule 3:

Schedule 3 implements duties to recognise, enforce and implement protective measures for vulnerable adults that are imposed by foreign courts even where the foreign court is not in a country that has ratified the Hague Convention on the International Protection of Adults 2000. The English court should adopt the same approach to all measures imposed from abroad while considering how its powers should be applied according to the facts of each case (although the court may need to be cautious when considering orders made by certain jurisdictions) (paragraph 39 of the judgement).
When determining whether an individual is an adult according to Schedule 3, the court should consider a factual description of that individual rather than looking at any legal test of capacity (paragraph 43 of the judgment).
The court cannot challenge the finding of a foreign court that an individual is habitually resident in that country (although it may challenge the process by which the foreign court made its finding) (paragraph 52 of the judgment).
The court has a discretionary power to refuse recognition of a foreign protective measure. However, because, by including Schedule 3, Parliament intended to facilitate the recognition and enforcement of foreign protective orders even if there were provisions in other parts of the MCA 2005 that appeared to conflict with the laws and procedures of the foreign state, the court can only exercise its discretion to refuse recognition on the grounds of breach of procedural safeguards or public policy (paragraphs 19(3) and (4), Schedule 3, MCA 2005). It will not be enough to show that another provision in the MCA 2005 appears to conflict with the foreign laws and procedures (paragraphs 55 to 60 and 93 to 95 of the judgment).

The judge commented that the COP rules should be amended as soon as possible to incorporate comprehensive rules to support Schedule 3 applications including rules on the allocation of hearings. In the meantime, Schedule 3 applications should be listed before a full High Court judge first and any further hearings and applications on the matter should be heard by the same judge unless otherwise directed (paragraph 105 of the judgment).

This case provides a comprehensive analysis of the Court of Protection's jurisdiction to recognise and enforce foreign protective measures under Schedule 3. It underlines the need for guidance and procedural rules on international cases. It is interesting that the case confirms the court would have to recognise and enforce an order from any foreign country, even one with a poor human rights record, unless procedural impropriety could be shown or if to do so would be against public policy.

Source: Health Service Executive of Ireland v PA and others [2015] EWCOP 38 (Bailii).

End of Document

Also Found In

Mental Capacity

Resource ID 4-616-4168

Published on 11-Jun-2015

Resource Type Legal update: case report

Jurisdictions

England
Wales