A recent decision from the Court of Protection has drawn a helpful line in the sand, which will be useful when a protected party seeks to move abroad.
This case involved an individual who lacked capacity expressing a clear desire to move back to her native Poland. The Protected Party suffered from a rare mental health condition in which she believed from time to time that her limbs were not working. She would experience pain without any identifiable cause and refuse to eat.
The local authority, Derby City Council, had utilised its statutory powers under the Mental Capacity Act 2005 to deprive her of her liberty (known as a “standard authorisation”), placing her in a care home where she could be fed through a tube during such episodes. However, the Protected Party had come to the UK at the age of 20 having been born in Poland and she was consistently expressing a desire to return to Poland. It was stated in evidence that she had been asking to return there for nine months. The Protected Party wanted to live with her sister and niece, who had remained in Poland, when she originally travelled to the UK.
Represented by a litigation friend, the Official Solicitor, the Protected Party started proceedings in the Court of Protection against the local authority, challenging the standard authorisation. The Court considered all the evidence in the case and Mr Justice Hayden permitted the Protected Party to return to Poland, and in a very lengthy judgment he gave some helpful guidance, setting out the practical issues the Court will consider in any such case in future:
- Details of how the embassy can assist a protected party;
- Confirmation of a protected party’s physical fitness to travel abroad and confirmation that any medication and treatment the Protected Party will need to travel safely can be administered;
- Evidence of a protected party’s mental health and how this will be affected by travel (from a psychiatrist);
- Evidence of a protected party’s entitlement to citizenship, benefits, and access to health and social care (ideally from an immigration lawyer);
- Details of applications a protected party may have to make to be able to relocate;
- Evidence of the care a protected party will need and will be entitled to receive in the other country (from an independent social worker);
- A protected party’s ability to fund travel costs and the cost of any carer(s) travelling with them, and ability to access a protected party’s funds in the new country;
- A transition plan for care and treatment;
- Ability to bring the case back to Court if there are any changes;
- Evidence that the move abroad may be in a protected party’s best interests (with reference to the best interests criteria);
- Clear evidence of a protected party’s wishes and feelings; and
- Consideration of any restrictions on travel.
The decision of the Court in the case of Re UR UR v Derby City Council and another demonstrates that a move abroad is very possible for a protected party, but the facts of this particular case may not apply to every situation in which a protected party wants to travel abroad. It is essential not only for a protected party to express a clear wish to do so, but for those caring for a protected party to demonstrate that the a protected party’s health will not be adversely affected by travel and that there are plans in place to ensure that a protected party receives any necessary care.
Every case will be unique and it is important to remember that the Court of Protection can equally bar any individual from taking a protected party abroad if it is considered to be too great a risk to a protected party’s health and well-being.
How can Nelsons help?
If you have any questions regarding the subjects discussed in this article, please contact Lewis or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.