FREE CHAPTER from ‘Mental Capacity Law in England and Wales: Recognition and Enforcement of Protective Measures and Private Mandates’ by Holly Chantler

CHAPTER ONE – INTRODUCTION

Introduction

This book offers a practical and accessible guide for practitioners navigating the increasingly complex interaction between mental capacity law and cross‑border issues. It will only consider the position with regard to adults.

As international mobility grows and families, assets and care arrangements extend beyond national boundaries, advisers are more frequently required to consider issues of jurisdiction, recognition and enforcement of foreign protective measures and powers of attorney. This book will consider the core principles and procedures relating to foreign protective measures, private mandates, deputyship applications and one‑off orders, applying the legal framework contained in the Hague Convention on the International Protection of Adults (Hague 35), the Mental Capacity Act 2005 and evolving case law of the Court of Protection. It will also consider the practical and legal implications when an incapacitated adult moves abroad or acquires ties to multiple jurisdictions. Designed as a clear roadmap through a challenging area of law, the book will provide professionals with confidence to address cross‑border capacity issues effectively and to anticipate the reforms still to come.

Convention on the International Production of Adults
(“the Convention”)

The Hague Convention of 13 January 2000 on the International Protection of Adults, also known as Hague 35, was signed by the United Kingdom on 1 April 2003. It was subsequently ratified but only in respect of Scotland and as such, it is not (yet) in force in England and Wales. Currently the only Contracting States are European[1].

The Convention makes provision for the mutual recognition of protective measures (discussed later) by Contracting States. It only relates to adults; Hague 34 applies to children until they reach the age of 18.

Article 1

(1) This Convention applies to the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests.

(2) Its objects are –

a. to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the adult;

b. to determine which law is to be applied by such authorities in exercising their jurisdiction;

c. to determine the law applicable to representation of the adult;

d. to provide for the recognition and enforcement of such measures of protection in all Contracting States;

e. to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention.

Article 22 of the Convention requires a protective measure in place in respect of a protected adult issued in a contracting state (“State A”) to be recognised by operation of law in another contracting state (“State B”). An application may be made by “any interested person” under Article 23 for recognition by State B of a protective measure issued by State A.

As mentioned above, the Convention has only been ratified by the United Kingdom in relation to Scotland. It is due to be ratified in relation to England and Wales, and whilst it had anticipated this would be in the near future, it is a project that continues to be pushed back by the Ministry of Justice.

As the Convention has yet to be ratified in England and Wales, it will not be considered in any detail in this book but practitioners should be aware that there is an intention to ratify and continue to review the situation.

SUMMARY

· The United Kingdom signed the Convention on 1 April 2003

· It has been ratified only for Scotland, not for England and Wales and is therefore not yet in force in England and Wales

· Practitioners should be aware of the Convention and that it is intended to be ratified in relation to England and Wales

The legal framework in England and Wales

The mental capacity legal framework in England and Wales is governed by the Mental Capacity Act 2005[2] (“the Act”), the Court of Protection Rules 2017[3], practice directions[4], Mental Capacity Act 2005 Code of Practice[5] and case law. Scotland and Northern Ireland have a distinct legal system from England and Wales and these will not be considered in this book.

Section 45 of the Act established the Court of Protection. It is a distinct court, only able to make decisions on behalf of someone who lacks capacity to take a particular decision or in relation to such a person (referred to in the legislation as “P”). It was, however, determined in United Lincolnshire Hospitals NHS Trust v CD[6] (and has been confirmed in subsequent case law) that the court has, in exceptional circumstances, the power to make an anticipatory declaration of lawfulness pursuant to section 15(1)(c) of the Act, contingent on the incapacitated person (known as “P”) losing capacity.

Most applications made to the Court of Protection are in relation to the property or welfare of persons habitually resident in England and Wales. However, the Act does contain provisions relating to the power of the court in situations where a person lacking capacity to make decisions is habitually resident outside of England and Wales.

Notwithstanding that the United Kingdom has not ratified the Convention in respect of England and Wales, it has implemented the terms of the Convention by virtue of section 63 of and Schedule 3 to the Mental Capacity Act 2005. The Act is only applicable in England and Wales and is the relevant statutory framework for practitioners to consider.

63 International Protection of Adults

Schedule 3 –

(a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 14^th January 2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and

(b) makes related provision as to the private international law of England and Wales.

Schedule 3 therefore contains two sets of provisions:

The first set of provisions will incorporate the Convention into English domestic law but only once the Convention has been brought into effect (paragraph 35 of Schedule 3 to the Act).
The second set of provisions are in force but are independent of the Convention. These provisions establish a set of rules for the recognition and enforcement in England and Wales of foreign protective measures, whether or not the foreign state has signed the Convention or if they have a reciprocal arrangement to the jurisdiction of England and Wales (section 63 of the Act).

For the purposes of this book, the focus will be on the second set of provision as the Convention has yet to be ratified (and therefore the first set of provisions are currently not in effect).

SUMMARY

· The legal framework in England and Wales can be found in the Mental Capacity Act 2005, Court of Protection Rules 2017, practice directions, the Code of Practice and case law

· The Court of Protection makes decisions for or in relation to persons who lack mental capacity. Such persons are known as P

· Most cases involve people habitually resident in England and Wales, but the Act also covers situations where a person lacking capacity lives outside the jurisdiction

· Notwithstanding the Convention has yet to be ratified, section 63 and Schedule 3 MCA 2005 still implement the principles of the Convention

Jurisdiction of the Court of Protection

The scope of the jurisdiction of the Court of Protection is set out in paragraph 7(1) of Schedule 3 to the Act.

Scope of jurisdiction

7 (1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to –

(a) an adult habitually resident in England and Wales,

(b) an adult’s property in England and Wales,

(a) an adult present in England and Wales, if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to him.

Additional powers to recognise and enforce foreign protective measures are set out in Part 4 of Schedule 3 to the Act (paragraphs 19-25). These will be considered later in the book.

The domestic definition of “adult” is set out in paragraph 4 of Schedule 3 to the Act.

Adults with incapacity

4 (1) ‘Adult’ means (subject to sub-paragraph 2) a person who –

(a) as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests, and

(b) has reached 16

(2) But ‘adult’ does not include a child to whom either of the following applies…

(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children that was signed at The Hague on 19 October 1996;

(b) …………………………….’

It will be noted the discrepancy between the definition in paragraph 4 of the Act of an adult being 16, unless Hague 34 applies, rather than the Convention which relates to those having attained the age of 18. This issue was considered in Irwin Mitchell Trust Corporation v KS & Ors[7]. In this matter, the Court of Protection considered the discharge of a deputy appointed in England and Wales in relation to KS, a young person under 16, who had substantial assets in England but had become habitually resident in India. The Act does not apply to under 16s in relation to jurisdiction issues. Instead, the Court of Protection would have sought to rely on Hague 34 but India is not a party. The explanatory report to Hague 34 (the Largarde Report) states that a non-contracting state should recognise the measure taken in the previous state before the child changed their habitual residence. Legal advice taken in India suggested that both England and Wales and India had jurisdiction, HHJ Hilder determined that the Court of Protection retained jurisdiction, although it may have been different if an Indian deputy equivalent had been appointed or if no deputy had ever been appointed in England and Wales. The issue would fall away upon KS attaining 16.

Property

64 (1) In this Act – …..

“property” includes any thing in action and any interest in real or personal property,

SUMMARY

· Paragraph 7(1) of Schedule 3 to the Act sets out the Court of Protection’s jurisdiction

· Part 4 of Schedule 3 to the Act (paragraphs 19–25) gives the court additional powers to recognise and enforce foreign protective measures

· The domestic definition of an “adult” is set out in paragraph 4 of Schedule 3 to the Act and is different to the Convention definition (16, not 18)

Inherent jurisdiction

Even if the Court of Protection determines that it does not have jurisdiction pursuant to paragraph 7(1) of Schedule 3 to the Act, the High Court (separate from the Court of Protection) can exercise its inherent jurisdiction outside of the Act. It should, however, be applied with caution and “not used in an unprincipled and unlimited manner, and in particular one which cuts across a statutory scheme which necessarily reflects Parliamentary intent” (paragraph 32 of DL v A Local Authority[8]). In practice it is unlikely that the court will consider it does not have jurisdiction under the Act but can exercise its inherent jurisdiction.

SUMMARY

· If the Court of Protection has no jurisdiction, the High Court may still act using its inherent jurisdiction

· The High Court should not use inherent jurisdiction in an unprincipled or excessive manner

· In practice it is rare for the High Court to exercise its inherent jurisdiction in this area