Alex Ruck Keene considers the ramifications of the recognition and enforcement of foreign protective measures for adults with impairments within the English legal system.
In Re PA, PB and PC  EWCOP 38, Baker J has conducted a detailed analysis of the jurisdiction of the Court of Protection to recognise and enforce foreign protective measures under Schedule 3 of the Mental Capacity Act 2005. That Schedule represents the implementation in English law of obligations contained within the 2000 Hague Convention on the International Protection of Adults (‘the Convention’) ((which the United Kingdom has ratified in respect of Scotland, but not England).
The cases before Baker J were concerned with the compulsory placement of foreign nationals in an English psychiatric hospital. A summary of the judgment can be found on the Essex Chambers website. Whilst the cases may be thought unusual, the analysis by Baker J of Schedule 3 has ramifications going far beyond the context of compulsory placements for psychiatric treatment. Of particular importance for those concerned with these areas are the following implications that flow from the judgment of Baker J.
First, the confirmation that – as in cases involving children under Brussels and Hague instruments – when we come to consider cross-border cases involving recognition and enforcement of protective measures taken in relation to adults with impairments, the English courts are operating in a very different sphere to purely domestic cases. In the context of recognition and enforcement, the Court of Protection:
- Will not be applying the test of capacity contained in s.2(1) Mental Capacity Act 2005 (‘MCA 2005’) (save in considering whether the adult has litigation capacity); and
- Will not be applying the best interests test contained in s.1(5) and s.4 MCA 2005 (save in relation to implementation of the measures).
In other words, the Court of Protection, and those appearing before it, have to undertake a very significant gear shift in their approach to such cases. Such a gear shift is one that many family practitioners and judges still find difficult in relation to cross-border cases involving children; it will perhaps be even more difficult in relation to adults where we are still taking the first steps in the identification of common themes and common practices across borders (and where we have yet in England and Wales to ratify the Convention…).
The understandable reluctance of practitioners to make this gear shift may well be heightened by the unanticipated irony that, by enacting Schedule 3, Parliament has smuggled into the MCA a status-based jurisdiction of precisely the kind that we thought that we had moved away from. Unlike the approach set down in s.2(1) MCA 2005, which limits the Court of Protection’s jurisdiction to those who lack capacity to make specific decision(s), the Court of Protection’s jurisdiction under Schedule 3 arises in relation to those who as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests (and who also satisfy one of the other criteria as to habitual residence or presence).
Second, the confirmation that the ability of the Court of Protection to refuse to recognise and declare enforceable foreign protective measures is very limited. The Court cannot, for instance, decline to recognise and enforce a protective measure even if – measured by s.2(1) MCA 2005 – the adult would have the material decision-making capacity and is objecting.
Third, the confirmation that, for purposes of applications for recognition and enforcement, the Court of Protection is effectively bound by the decisions of the foreign court as to the habitual residence of the individual.
Finally, the confirmation that, by passing Schedule 3 in the form that it did, Parliament opened the door to applications for recognition and enforcement to be made from any country in the world, with no ‘filter’ specific to non-Convention countries (save for the limited filter in relation to cross-border placements between Convention countries in paragraphs 19(4) and 26 which will only become relevant when the Convention in ratified in respect of England and Wales).
Cross-border matters are now part of the daily reality of very many practitioners (not least because, for these purposes, Scotland is a foreign country…). Cases with a cross-border element will, I predict, come before the Court of Protection with ever more frequency. And, in due course, I anticipate that much the same will be said in relation to the Convention and to such cases as has been said by Sir James Munby P in relation to the earlier Hague Conventions applicable to children and their European counterparts:
“They have exposed us, often if only in translation, to what our judicial colleagues in other jurisdictions are doing in a wide range of family cases. They have taught us the sins of insularity. They have taught us that there are other equally effective ways of doing things which once upon a time we assumed could only be done as we were accustomed to doing them. They have taught us that, beneath all the apparent differences in language and legal system, family judges around the world are daily engaged on very much the same task, using very much the same tools and applying the same insights and approaches as those we are familiar with. Most important of all they have taught that we can, as we must, both respect and trust our judicial colleagues abroad.” Re E (A Child)  EWHC 6 (Fam)
Alex Ruck Keene, Barrister, 39 Essex Chambers and Honorary Research Lecturer at The University of Manchester