QD (Jurisdiction: Habitual Residence) [2019] EWCOP 56 (19 December 2019)

QD (Jurisdiction: Habitual Residence) [2019] EWCOP 56 (19 December 2019)

QD remains habitually resident in Spain; the English Court of Protection must decline substantive jurisdiction under the MCA 2005 and yield to the Spanish court. The removal of QD from Spain was wrongful and not justified by necessity. The inherent jurisdiction cannot be used to make substantive orders where the statutory scheme under the MCA 2005 is comprehensive. Only temporary protective measures can be ordered pending determination by the Spanish authorities.

Citation
[2019] EWCOP 56
Parties
Applicant: TD; Applicant: BS; First Respondent: KD; Second Respondent: QD (by the Official Solicitor as his Litigation Friend)
Jurisdiction
England and Wales
Judgment Date
19 December 2019
Procedural Posture
Court of Protection Application (welfare Orders, Jurisdiction) / Preliminary Issue on Jurisdiction
Outcome
Jurisdiction declined; temporary protective order made.
Legal Topics
Habitual Residence, Jurisdiction Under MCA 2005, Inherent Jurisdiction, Protective Measures, Deprivation of Liberty, Urgency Jurisdiction
Mental Capacity Law Private International Law Habitual Residence Jurisdiction Under MCA 2005 Inherent Jurisdiction Protective Measures Deprivation of Liberty Urgency Jurisdiction

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Parties

TD

Applicant

BS

Applicant

KD

First Respondent

QD (by the Official Solicitor as his Litigation Friend)

Second Respondent

Procedural Posture

Court of Protection Application (welfare Orders, Jurisdiction) / Preliminary Issue on Jurisdiction

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 English Court of Protection has substantive jurisdiction to make welfare orders for QD
  3. 3 Whether the inherent jurisdiction of the High Court can be invoked to make substantive orders for QD

Ratio Decidendi

QD remains habitually resident in Spain; the English Court of Protection must decline substantive jurisdiction under the MCA 2005 and yield to the Spanish court. The removal of QD from Spain was wrongful and not justified by necessity. The inherent jurisdiction cannot be used to make substantive orders where the statutory scheme under the MCA 2005 is comprehensive. Only temporary protective measures can be ordered pending determination by the Spanish authorities.

Court Disposition

Jurisdiction declined; temporary protective order made.

Orders

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