QD (Jurisdiction: Habitual Residence)

QD (Jurisdiction: Habitual Residence)

QD remains habitually resident in Spain; the removal to England was wrongful and not justified by necessity. The English court must decline primary jurisdiction under the MCA 2005 and yield to the Spanish court. Only temporary protective measures are justified under Schedule 3, paragraph 7(1)(d) MCA 2005.

Parties
Applicant: TD; Applicant: BS; First Respondent: KD; Second Respondent: QD
Jurisdiction
England and Wales
Judgment Date
19 December 2019
Procedural Posture
Court of Protection Application / Jurisdictional Determination (preliminary Issue)
Outcome
Primary jurisdiction declined; temporary protective order granted
Legal Topics
Habitual Residence, Jurisdiction Under Mental Capacity Act 2005, Inherent Jurisdiction, Protective Measures, Deprivation of Liberty
Mental Capacity Private International Law Family Law Habitual Residence Jurisdiction Under Mental Capacity Act 2005 Inherent Jurisdiction Protective Measures Deprivation of Liberty

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Parties

TD

Applicant

BS

Applicant

KD

First Respondent

QD

Second Respondent

Procedural Posture

Court of Protection Application / Jurisdictional Determination (preliminary Issue)

Legal Issues

  1. 1 Whether QD is habitually resident in England or Spain for the purposes of jurisdiction under the Mental Capacity Act 2005
  2. 2 Whether the removal of QD from Spain to England was wrongful or justified under the doctrine of necessity
  3. 3 Whether the English court should exercise jurisdiction on grounds of urgency or inherent jurisdiction

Ratio Decidendi

QD remains habitually resident in Spain; the removal to England was wrongful and not justified by necessity. The English court must decline primary jurisdiction under the MCA 2005 and yield to the Spanish court. Only temporary protective measures are justified under Schedule 3, paragraph 7(1)(d) MCA 2005.

Court Disposition

Primary jurisdiction declined; temporary protective order granted

Orders

  • QD to remain at and be cared for at The Pines in England as a protective measure until Spanish authorities determine next steps
  • Deprivation of liberty authorisation at The Pines to continue temporarily