Capacity, habitual residence, and internet use in Scotland – a Court of Protection conundrum
In a recent ruling David Rees KC (sitting as a Tier 3 Judge of the Court of Protection) helpfully set out guidance as to what has to be done where there is a question of whether it has jurisdiction in a cross-border case. Alex Ruck Keene KC (Hon) examines the judgment.
The guidance in Newcastle City Council v LM [2023] EWCOP 69 is set out at paragraph 46:
(1) In any case with a cross-border element, the Court of Protection’s jurisdiction must be established or determined at the commencement of the proceedings (See Hackney at [87] – [89] and [112] – [113]).
(2) If it is not immediately apparent, then a provisional determination should be given pending a prompt determination of the issue (Hackney [89]).
(3) The doctrine of perpetuatio fori does not apply in cases involving the Court of Protection’s jurisdiction whether or not the 2000 Convention is engaged (Re O at [21]). [in other words, the fact that the Court of Protection had jurisdiction at the start of the proceedings does not mean that it will retain it throughout]
(4) The Court of Protection must, therefore, keep the question of jurisdiction under review throughout the proceedings and must be satisfied that it retains jurisdiction at the date of the final substantive hearing (Hackney at [116]).
(5) In cases where the 2000 Convention applies (assuming that it is eventually brought into force in England and Wales), a change in habitual residence to another contracting country will mean that the court will automatically lose jurisdiction under Art.5 (see Hackney at [116]).
(6) However, a change in habitual residence to a non-contracting country may not prevent the English court from retaining jurisdiction by reference to domestic law (see Hackney at [117]). Whilst the MCA 2005 will not be available in such circumstances, the inherent jurisdiction may, in some cases, provide an alternative source of domestic authority to enable the High Court to take steps to protect an incapacitous individual who is habitually resident outside England and Wales in a non-contracting country. However, there are likely to be limits on the circumstances under which the inherent jurisdiction could be utilised and the orders which could be made thereunder. [for more on the potential for the inherent jurisdiction to be used, see AB v XS [2021] EWCOP 57 and Re Clarke [2016] EWCOP 46]
In the case before him, David Rees KC found that the subject of the proceedings remained habitually resident in England & Wales, despite the fact that she had been placed in Scotland and had been there since 2018 and there was “no doubt” that she was settled there.
39. […] Nonetheless, I need to consider the conditions and reasons for her stay and these, in my view, point towards her remaining habitually resident in England and Wales. She was initially placed in Scotland because there was no suitable placement closer to her home in Newcastle and, in my view, that remains her principal place of integration and social and family environment. She has been deprived of her liberty throughout her time in Scotland, which means her experience there is very different to an individual who is not subject to those restrictions. Most importantly, and a factor which I consider has magnetic importance in this case, her stay has, since the outset of these proceedings, been constantly subject to interim orders of the Court of Protection authorising the placement and the terms of the restrictions on her liberty.
40. Those interim orders were only ever intended to govern the position until a final hearing in this case, but their interim nature emphasises the inherently precarious nature of LM’s placement absent a final conclusion to these proceedings.
41. In my judgment, whilst this matter is not on all fours with the position in Re PA, the fact that LM’s living arrangements have been subject to review and approval by the Court of Protection on the basis of interim orders throughout the continuation of these proceedings points towards her habitual residence remaining in England and Wales, and I note that the Scottish courts have been willing to recognise and give effect to those orders. I, therefore, agree with the submission that has been made to me by Mr Davies that the interim nature of the orders that have thus far been made authorising her placement in Scotland, deprives LM’s residence there of the necessary degree of stability which might otherwise have led to a change in her habitual residence.
David Rees KC recognised, however, that:
45. [c]hanges in her circumstances may alter this position. In my view the making of a final order in this case which will not be temporary and not be subject to an ongoing review is likely to tip the scales such that LM will then acquire habitual residence in Scotland fairly rapidly thereafter. Even though that final order will be time limited, it will be a final order. The current proceedings will be at an end and my order will not be subject to any further automatic review by the Court of Protection. Assuming that such an order does indeed cause a shift in LM’s habitual residence then any future application to approve changes to the restrictions on her liberty, or to extend the duration of the authorisation will lie to the courts of Scotland.
That is undoubtedly correct. Indeed, a point that has arisen in a case I was in, although not the subject of a reported judgment, was as to the implications of the legal fiction that a decision of the Court of Protection under s.16 is that it is the decision of the person themselves. Looked at through that prism, a final decision that the person is to reside in a placement abroad could be said (in legal terms) to represent the expression of the fixed intention to remain there which may well be decisive in terms of identifying whether their place of habitual residence has changed.
Separately, the judgment also includes an interesting analysis of the capacity of LM to make decisions about using the internet and social media in circumstances where on one occasion she had:
placed herself in a position of having private or intimate images of herself being made available to whoever she was in a conversation with and that this posed the risk that those images could be used further. I note also from LM’s discussion with Ms Heir that LM was not able to properly understand the risk to her of sharing such images. She was able to identify that the third party who received those images could themselves be in trouble if they shared those images more widely, but she did not, in the course of that conversation, appear to be able to understand the risks to her of those images being shared.
On the evidence before him, David Rees KC expressed himself satisfied (although on a fine balance) that LM currently lacked capacity to make decisions about internet and social media use. This included not just the fact she could not understand, use and weigh the risks that pictures shared by her could be shared more widely, but also that placing offensive material online could upset or offend others. He noted that he fully recognised that:
74. […] my decision on this issue will be particularly disappointing for LM who feels that she is being held to a different standard to her capacitous peers. However, as I will explain in a moment, I am satisfied that it is nonetheless in her best interests to be given access to a smartphone in accordance with the protocol devised by the local authority, and this will, I consider, assist her in her use of social media and enable her to continue to learn and build her skills in this regard. Moreover, it was clear from Dr Camden-Smith’s evidence that she considers that this is an area where LM’s capacity may well improve in the future and, although I have found today that LM currently lacks capacity in this regard, this is clearly an issue which needs to be kept under careful review.
Given that David Rees KC was making orders about a person physically present in Scotland, one could imagine a situation in which it would have been necessary for him to have considered whether LM’s actions could place her in jeopardy under the Scottish (rather than English) framework governing the placing of offensive material online.
For the future, however, and, because David Rees KC made final orders as to LM’s capacity and best interests in various domains (for a period of 12 months) the consideration of these matters would fall in future to be considered by the Scottish courts. To remind readers, that framework is not the same as that which applies in England – the concept of best interests, for instance, does not apply.
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.
