Re HM; PM v KH  EWHC 2824 (Fam)
It was in the best interests of a young lady without capacity to determine questions of treatment, care and medical treatment to reside at a specialist placement rather than with her father.
Re HM; PM v KH  EWHC 3279 (Fam) - contempt
Summary and commentary
This judgment of Roderic Wood J (handed down on 21/11/08, but not widely circulated at the time, or indeed until very recently), is the first in what has become a continuing sequence of judgments (now being determined by Munby LJ) relating to residence and contact issues regarding a young lady, HM. The Court was initially seised of the matter under the inherent jurisdiction/wardship jurisdiction, and the matter continued to be determined under the inherent jurisdiction by virtue of the transitional provisions contained in Article 3 of the Mental Capacity Act 2005 (Transitional and Consequential Provisions) Order 2007.
The case turns on its very specific facts, which are extensively and carefully rehearsed by the Court, but is of wider importance for its consideration of the question of jurisdiction at paragraphs 14-21 and, in particular, 24-27. Extensive proceedings had taken place in Guernsey concerning both contact arrangements as between HM and her (divorced) parents, and also her residence. The Court of Appeal of Guernsey had made an order prohibiting either mother or father from commencing proceedings in any jurisdiction other than that of Guernsey save with the prior consent of the Court of Appeal. Roderic Wood J found that HM was domiciled in Guernsey, but that she was "more probably than not" (paragraph 25) habitually resident in Cheshire at the residential placement where she had been for some 5 years by the time of the judgment. He did not conduct a detailed analysis of how she had come to be habitually resident there, but stated that "[t]he reality seems to me to be on any reasonable approach to the test of habitual residence that she qualifies for an English one" (paragraph 24). It was on that basis, and upon the basis of the decision in Re S (Hospital Patient: Foreign Curator)  3 WLR 596 (which placed the emphasis very much upon physical presence as a basis for jurisdiction) that he considered that he had jurisdiction to make orders and declarations, notwithstanding the order in the Guernsey Court of Appeal and the principles of judicial comity. This position is perhaps not quite as surprising as it might sound given that it was clear that the Courts of Guernsey had agreed to "bend its knee" to the jurisdiction of the Court in London in its attempt to rule upon the best interests of HM.
It is suggested that the determination of the question of habitual residence will have to be revisited in light of the forthcoming decision of the Court of Protection upon the meaning of the phrase in Schedule 3 to the MCA 2005, as it would be peculiar were the Court to adopt a different meaning in the event that it were to be considering the question under the inherent jurisdiction as opposed to under Schedule 3. This is particularly so, given that Schedule 3 provides the Court with jurisdiction to recognise and enforce protective measures taken in foreign jurisdictions that include measures taken in respect of those who have capacity but would fall within the definition of a vulnerable adult given by Munby J (as he then was) in Re SA; A Local Authority v MA  EWHC 2942 (Fam).
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