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Online forum | Latest topic on forum: Sec 72 (1) b ii MHA

Re PO: JO v GO [2013] EWHC 3932 (COP), [2013] MHLO 110

Judgment relating to Hague Convention on the International Protection of Adults 2000 and MCA 2005 sch 3.

Initial note

By Alex Ruck Keene, 39 Essex Street, 13/12/13:

Re PO - cross border judgment by the President

Key points include:

(1) Schedule 3 is not entirely in force, because the Convention is not yet in force ‘in accordance with Article 57’ of the Convention, as the UK government in its infinite wisdom only ratified the Convention in respect of Scotland;

(2) Habitual residence is a question of fact to be determined having regard to all the circumstances of the particular case. Further:

a. Habitual residence can in principle be lost and another habitual residence acquired on the same day;
b. In the case of an adult who lacks the capacity to decide where to live, habitual residence can in principle be lost and another habitual residence acquired without the need for any court order or other formal process, such as the appointment of an attorney or deputy;
c. In deciding whether the actions taken by relatives or carers have led to a change in the habitual residence of P, the doctrine of necessity is relevant, which requires that the decisions taken by the relative or carer be reasonable, arrived at in good faith and taken in the best interests of the assisted person;
d. There will be no change in the habitual residence of the person if the removal from the jurisdiction has been wrongful (e.g. in the sort of circumstances that prevailed in Re MN or in breach of a court order)
e. It is permissible to take into account wishes and feelings and the extent to which the person is settled in deciding whether habitual residence has changed.

(3) The doctrine of perpetuatio fori does not apply when it comes to determining changes in habitual residence – i.e. the position falls to be considered as at the point of the hearing, not at the point of issue of the relevant application;

(4) Forum non conveniens applies in the context of incapacitated adults as between England/Scotland in the same way as it would with children, and applying the Spiliada principles; it would also apply subject to the provisions of the Convention as and when ratified;

(5) A decision to refuse to exercise jurisdiction on the basis of forum non conveniens is not a decision falling within the scope of s.1(5) MCA 2005.

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