AB, Re [2020] EWCOP 47 (25 September 2020)

AB, Re [2020] EWCOP 47 (25 September 2020)

AB remained habitually resident in the USA at all material times because her removal to the UK by M was not a valid exercise of guardianship powers but was done in bad faith to avoid imminent US proceedings to revoke guardianship. The US Letters of Guardianship are not recognised in England and Wales on grounds of public policy. The Court of Protection's jurisdiction is limited to making urgent protective orders pending further order of the US court. The deprivation of liberty authorisation remains in place until the US court determines AB's long-term welfare.

Citation
[2020] EWCOP 47
Parties
Applicant: M; Applicant: S; First Respondent: AB (by her Litigation Friend the Official Solicitor); Second Respondent: London Borough of Southwark
Jurisdiction
England and Wales
Judgment Date
25 September 2020
Procedural Posture
Court of Protection Application (recognition of Foreign Guardianship and Challenge to Deprivation of Liberty Authorisation) / Final Judgment
Outcome
Application for recognition of US Letters of Guardianship refused; AB to remain in current placement pending further order of the US court; urgent protective orders only.
Legal Topics
Recognition of Foreign Protective Measures, Habitual Residence, Deprivation of Liberty Safeguards (do Ls), Jurisdiction Under Mental Capacity Act 2005, Public Policy Exception, Article 8 ECHR (right to Private and Family Life)
Mental Capacity Law Private International Law Human Rights Recognition of Foreign Protective Measures Habitual Residence Deprivation of Liberty Safeguards (do Ls) Jurisdiction Under Mental Capacity Act 2005 Public Policy Exception +1 more

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Parties

M

Applicant

S

Applicant

AB (by her Litigation Friend the Official Solicitor)

First Respondent

London Borough of Southwark

Second Respondent

Procedural Posture

Court of Protection Application (recognition of Foreign Guardianship and Challenge to Deprivation of Liberty Authorisation) / Final Judgment

Legal Issues

  1. 1 Whether the Court of Protection should recognise Letters of Guardianship granted by Erie County Surrogate Court, New York, USA, in respect of AB
  2. 2 Whether AB's habitual residence changed from the USA to the UK upon her removal by M
  3. 3 Whether the deprivation of liberty authorisation for AB's placement in a UK care home should be set aside and AB returned to her mother's care

Ratio Decidendi

AB remained habitually resident in the USA at all material times because her removal to the UK by M was not a valid exercise of guardianship powers but was done in bad faith to avoid imminent US proceedings to revoke guardianship. The US Letters of Guardianship are not recognised in England and Wales on grounds of public policy. The Court of Protection's jurisdiction is limited to making urgent protective orders pending further order of the US court. The deprivation of liberty authorisation remains in place until the US court determines AB's long-term welfare.

Court Disposition

Application for recognition of US Letters of Guardianship refused; AB to remain in current placement pending further order of the US court; urgent protective orders only.

Orders

  • Refusal to recognise US Letters of Guardianship in respect of AB
  • AB to remain at B Care Home under existing deprivation of liberty authorisation