Judge rules it is in “best interests” of man who was previously resident in Spain for 30 years to remain in care home in Wales

In Neath Port Talbot Country Borough Council v CK & Ors [2025] EWCOP 47 (T3), Mrs Justice Morgan highlighted, however, that if a public body becomes aware there is a prospect of a person returning from a country where they are resident to the United Kingdom to be placed within a registered care setting, that public body should “alert those involved of the need for the person to consent to that process and to follow the laws of the country in which they are habitually resident”.

She noted: “Consideration of capacity at an early stage should be at the forefront of everyone's mind. Specifically, if what is under consideration involves a decision to leave one country and go to live in another, the person's capacity to decide that, must be considered at an early stage.”

At the centre of the application was ‘CK’, who is 75 and has been diagnosed with vascular dementia.

At the time of the hearing, he was living at Z Care home.

The application before the court was brought in relation to the arrangements for his residence and care, most specifically as to whether it was in his best interests to return to Spain.

Until April of 2024, CK and his wife EK had lived in Spain for more than 30 years.

In 2018, CK suffered a stroke when on holiday in Dubai.

After that holiday, he travelled to the United Kingdom (where his son lives) and whilst here had a number of transient ischemic attacks and associated falls.

CK was an in-patient in W hospital for approximately 5 weeks. On discharge he was supported by his son and then he returned to Spain.

Once in Spain, CK's health deteriorated. He had increased need for care and support. At some point his wife EK made arrangements for him to return to Wales and to live in the Z care home where he remained at the time of the hearing.

In the early stages of the proceedings, it was suggested that it had been agreed he should return to Wales, the country of his birth, and that he should not move to live in a care home in Spain.

Mrs Justice Morgan observed: “It has never been clear by whom that was agreed but it was not a decision in which CK played any part. At this hearing it is the common position of the Local Authority and the Litigation Friend that he lacked capacity at the relevant time to make the decision to move to Wales.”

The issues which fell to be determined at the hearing were as follows:

• Would CK be fit to travel back to Spain?
• Is there an available option in respect of CK's residence and care in Spain?
• If CK would be fit to travel back to Spain, would it be in CK's best interests to remain in this jurisdiction and not to return to Spain for any purpose, or alternatively would it be in CK's best interests to return to Spain to either: (i) reside at and receive care in any available option identified at point (b) above; or (ii) to undergo assessment to determine whether he would be eligible to reside at and receive care at a publicly funded residential care setting in Spain?
• Whether, if it is determined to be in CK's best interests to remain in this jurisdiction, it would be in CK's best interests to explore whether he should be moved to an alternative care home;
• Whether if it is determined to be in CK's best interests to remain in this jurisdiction, CK's habitual residence alters such that he becomes eligible for a standard authorisation under Schedule A1 MCA 2005;
• If CK is eligible for a standard authorisation under Schedule A1 MCA 2005, what conditions should be attached to ensure that CK is able to access the community?
• Whether, if CK's habitual residence is determined to remain in Spain, the Court of Protection should apply the law of Spain pursuant to paragraph 11 of schedule 3 MCA 2005 as a means of authorising the deprivation of CK's liberty in this jurisdiction;
• Whether the local authority should be appointed as financial deputy for CK.

First, considering the issue of habitual residence, Mrs Justice Morgan said: “I accept Counsel's joint submission that it is permissible and appropriate to review the question of CK's Habitual residence. That review is properly done by consideration of significant changes in the factual landscape or the emergence now, of facts which were not known in June 2025.”

She continued: “Within that context the following factual matters are agreed. There is no property to which CK could return to live in Spain. The detail of this is discussed below but it is agreed that he neither owns nor rents property in Spain. Neither does he run (or continue to have the benefit from) a business in Spain, the evidence being that the failure of that business is linked to the absence of a property in which he could return to live.

“His own care needs reflect his deteriorated physical and cognitive health. He could not afford to pay privately to meet these in Spain either as might have been contemplated when he had a property to return to, by way of 24-hour care at home or in the absence of such a property by moving to a privately funded care home. His relationship with his wife is not straightforward. It has been characterised by some at this hearing as estranged. She has had no contact with him since he lived in the current care home and has never visited him there. This is not a case in which she will be caring for him or living with him in Spain.

“He might by reason of his previous residence in Spain and his health condition be eligible for a publicly funded care home, but this is not certain and would require assessment for which he would have to be physically present in Spain before determination. The position in relation to his ability to travel, considered later, is compromised. His own expressed wishes are clear but are not congruent with the reality of what is now available. Having looked carefully at the evidence underpinning that which is agreed, I accept those matters.”

The judge was satisfied that CK’s habitual residence, at the time she had to make determinations for him, was in Wales.

Next, considering the question of whether there would be an available option in respect of CK's residence and care in Spain, the judge noted there were no other placement options which had been explored by the local authority in Spain, therefore there would be “no realistic or appropriate options for CK to return to if he moves to Spain.”

The judge also found that CK would not be fit to travel back to Spain, concluding that “the experience of making the journey to Spain is one which he is likely to find distressing, uncomfortable, disruptive and frightening.”

Turning to consider CK’s best interests, the judge said: “Even setting aside for the moment the very considerable practical and financial obstacles to [CK] having any kind of home - whether institutional or otherwise - in Spain, [is] that he would be returning to a life very different from that which he most likely has in mind when he speaks of going back to live in the house he shared with his wife. He would be returning to a situation of social isolation.

“In this jurisdiction, his son DK (who has a number of difficulties of his own) has visited CK assiduously twice a week, undertaking a journey which is not easy in order to do so. His father on the evidence benefits from the frequent contact with his family. It would be, I was told by DK all but impossible for him to visit his father at all in Spain and were he able to, it would be at nothing like a frequent and regular level that is possible here. The familiarity of frequent routine family contact is in my judgment very much in CK's interests. It would be naive to think that were there to be many months between DK's visits, were he able to visit at all, that would not diminish the benefit to CK. It would also be naive to disregard the benefits to someone with CK's diagnosis attended by cognitive and memory decline, of seeing important family members often and predictably.

“It follows from the foregoing that I am satisfied that it is in his best interests to remain in this jurisdiction. Had I reached a different view about jurisdiction I would have gone on to make decisions for him pursuant to schedule 3 MCA 2005 7 (1) (d) but that does not now arise.”

The judge then considered the following question: “If CK is eligible for a standard authorisation under Schedule A1 MCA 2005, what conditions should be attached to ensure that CK is able to access the community?”

She said: “It is my view that the way in which CK's access to the community has been limited is not acceptable and that it would make a meaningful difference to him were able to, for example go out with DK from time to time into the community. I read with interest that as things stand, he is reported as being of low mood. 

“There are not now the difficulties attendant on CK's habitual residence and he is now eligible for a standard authorisation. The Local Authority has indicated that it will take steps to coordinate the assessments required under Schedule A1 MCA 2005 in order that a standard authorisation can be granted. I am encouraged that funding has been confirmed to support access to the community and that the local authority, rightly, does not object to the imposition of a condition on the standard authorisation when made. I will invite the parties to agree the terms of such condition.”

Making closing observations on cases where there are questions over a person’s capacity, and that person is living outside of England and Wales, Mrs Justice Morgan said: “Consideration of capacity at an early stage should be at the forefront of everyone's mind. Specifically, if what is under consideration involves a decision to leave one country and go to live in another, the person's capacity to decide that, must be considered at an early stage.

“[…] If a public body becomes aware that there is a prospect of a person returning from a country where they are resident to the United Kingdom to be placed within a registered care setting, that public body should alert those involved of the need for the person to consent to that process and to follow the laws of the country in which they are habitually resident.”

She added: “Registered care settings, should, before granting admission to a person who is resident in another country, satisfy themselves either that the person is consenting (i.e. that they have the capacity so to consent) to a return to the United Kingdom and placement within a care setting or that the return follows a lawful process in the country in which they are resident or there is a valid substitute or surrogate decision making power governing the process under that country's law.”

The judge added that where a person has moved from one jurisdiction to another in circumstances such as CK did here, supervisory bodies for the purposes of Schedule A1 of the MCA 2005 “should not authorise a deprivation of liberty by means of the administrative process of DOLS but should make urgently an application to the Court of Protection, within which application should be highlighted for the purposes of gatekeeping decision making that there is or is likely to be an issue to be determined in respect of habitual residence”.

Lottie Winson