Court Of Protection Rules On Habitual Residence Of Protected Party

The Court of Protection was recently called on to decide whether it was in the best interests of a Protected Party to be returned to the UK, six years after she had moved abroad to Lebanon.

The case in question – AB v XS [2021] EWCOP 57 – also involved a jurisdictional issue as the Protected Party was living abroad.

AB v XS

Case summary

The Protected Party was 76 years of age. She had been diagnosed with Alzheimer’s disease in 2013 and in 2015, moved to Lebanon to be close to her brother, who sadly died a year later. Due to the Protected Party’s Alzheimer’s, she lacked the capacity to make decisions concerning her country of residence.

The Protected Party’s cousin wanted her to be returned to the UK, arguing that she would have wanted to come back had she been in a position to make that decision herself. The application was opposed by the Protected Party’s nephews in the USA.

In 2018, the Protected Party’s cousin began proceedings to have her moved back to the UK, and through the Lebanese Courts, a Guardian was appointed for the Protected Party and the Court gave permission for her to be moved back. However, the nephews based in the USA managed to obtain a Travel Ban order in Lebanon in December 2020, as they were firmly opposed to the move back. The Travel Ban was being appealed at the time that this case was heard by the Court of Protection as it was suggested that it was not served on the Protected Party’s Guardian.

The Protected Party’s cousin argued that the economic situation in Lebanon meant that she was not guaranteed a secure future there, including access to necessary medicines. The Protected Party’s care home had also been damaged in the explosion in Beirut last year and she had to be temporarily relocated, but the Judge did not find that there were any issues with the quality of the care home or the level of care the Protected Party was receiving.

The Protected Party’s cousin arranged for a desktop report to be conducted by Dr Syed, who concluded on the basis of the case papers that the Protected Party Alzheimer’s was so advanced that it was impossible to say whether she wished to return to the UK, or whether she was able to understand what she was doing or why. He did say that the potential lack of available medication was a concern.

The Courts decision

The Official Solicitor, representing the Protected Party in the proceedings, obtained a report from an expert geriatric psychiatrist based in Beirut. He met with the Protected Party and expressed concern that her medical condition was deteriorating, and indeed could deteriorate rapidly. Overall, on balance, the Court was persuaded that it was in the Protected Party’s best interests to remain in Lebanon. Despite the concern about the potential unavailability of medical treatment, the Judge was concerned that moving the Protected Party to a different country would be incredibly disruptive to her and would remove her from an environment where she was being well cared for.

The Court firstly had to decide whether it had jurisdiction, with the Protected Party being based abroad. The question that needed to be answered was whether the Protected Party was habitually resident in the UK. The Court assessed this question in some detail and decided that the level of integration in Lebanese society meant that the Protected Party was actually now habitually resident in Lebanon and therefore, the Mental Capacity Act 2005 did not apply. However, the Court could have exercised its inherent jurisdiction of the High Court – which in this context essentially provides a backup option enabling the Court to make an order that any vulnerable individual with UK citizenship be returned to the UK. However, there must be a clear justification for invoking the inherent jurisdiction and the Judge came to the view that the facts of the case did not merit cutting across the limitations in the Mental Capacity Act, distinguishing it from other cases in which vulnerable adults and children had been in clear danger had the Court not intervened.