AB, Re

AB, Re

Recognition of the US Letters of Guardianship is refused on public policy grounds, specifically judicial comity, because M removed AB from the US to evade pending guardianship discharge proceedings. AB remains habitually resident in the USA, so the English court's jurisdiction is limited to urgent or temporary protective measures. The standard authorisation for deprivation of liberty at B Care Home meets the 'no refusals' and 'best interests' requirements; the challenge to it is dismissed.

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 Mental Capacity Act 2005 / Judgment After Contested Hearing on Recognition of Foreign Guardianship and Challenge to Deprivation of Liberty Authorisation
Outcome
Application for recognition of US Letters of Guardianship refused; challenge to deprivation of liberty authorisation dismissed.
Legal Topics
Recognition of Foreign Protective Measures, Habitual Residence, Deprivation of Liberty Safeguards (do Ls), Public Policy Exception, Judicial Comity, Best Interests, Jurisdiction Under Mental Capacity Act 2005
Mental Capacity Law Private International Law Human Rights Recognition of Foreign Protective Measures Habitual Residence Deprivation of Liberty Safeguards (do Ls) Public Policy Exception Judicial Comity +2 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 Mental Capacity Act 2005 / Judgment After Contested Hearing on Recognition of Foreign Guardianship and Challenge to Deprivation of Liberty Authorisation

Legal Issues

  1. 1 Whether the English court should recognise Letters of Guardianship granted by a US court to M in respect of AB under Schedule 3 of the Mental Capacity Act 2005
  2. 2 Whether AB's habitual residence had changed from the USA to the UK
  3. 3 Whether the standard authorisation for deprivation of liberty in AB's current living arrangements meets the qualifying requirements, specifically the 'no refusals' and 'best interests' requirements

Ratio Decidendi

Recognition of the US Letters of Guardianship is refused on public policy grounds, specifically judicial comity, because M removed AB from the US to evade pending guardianship discharge proceedings. AB remains habitually resident in the USA, so the English court's jurisdiction is limited to urgent or temporary protective measures. The standard authorisation for deprivation of liberty at B Care Home meets the 'no refusals' and 'best interests' requirements; the challenge to it is dismissed.

Court Disposition

Application for recognition of US Letters of Guardianship refused; challenge to deprivation of liberty authorisation dismissed.

Orders

  • Application for recognition of US Letters of Guardianship refused on public policy grounds.
  • Challenge to standard authorisation for deprivation of liberty dismissed.