Thu, 30 Jun 2011
By Claire van Overdijk
Schedule 3 to the Mental Capacity Act 2005 governs the international protection of adults. It addresses cross border situations where protective measures are in place in respect of incapacitated adults and sets out the private international law rules that govern such situations.
Its full scope and application is to date an area which is largely unknown due to the fact that there is little in terms of background information available to assist its interpretation. It was not part of the draft MCA Bill, it was not discussed in Parliament prior to the passing of the Bill and it is not mentioned within the Explanatory Notes to the MCA. Nor is there any subordinate legislation concerning it. Furthermore, there is only one reported case before the Court of Protection that has substantively addressed Schedule 3 (Re MN  EWHC 1926 (Fam)).
This lacuna may not be worthy of discussion were it not for the fact that Schedule 3 fundamentally changes the private international law rules of England and Wales with regards to incapacitated adults. The following discussion addresses how Schedule 3 has changed the jurisdiction of the Court of Protection with regard to cross border situations.
Purpose of Schedule 3:
Despite its uncertain background, the purpose of Schedule 3 is clear. It implements into the law of England and Wales (E&W) the provisions of the Hague Convention on the International Protection of Adults 2000 (the Convention).
The Convention entered into force on 1 January 2009. It has been signed by thirteen states (Cyprus, Czech Republic, France, Finland, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Poland, Switzerland and the UK) but has thus far only been ratified by four States: France, UK (extended to Scotland but not England and Wales), Germany and Switzerland.
Although the UK has yet to ratify the Convention for E&W it became of full effect here on 1 January 2009. This is by virtue of Schedule 3, which gives effect to the Convention in E&W in so far as the MCA does not otherwise do so and makes related provision as to the private international law of England and Wales. Thus our domestic law is now (subject to a few minor differences) fundamentally the same as the Convention.
The underlying principle of the Convention is to improve the protection in international situations of adults who, by reason of an impairment or insufficiency in their personal faculties, are not able to safeguard their own interests. The Convention is primarily intended to address situations where questions may arise over which court has jurisdiction to make decisions in relation to an adult who is present in one jurisdiction but habitually resident in another.
Jurisdiction of the Court of Protection prior to Schedule 3:
Prior to Schedule 3 coming into force, the Court of Protection would only exercise jurisdiction in relation an incapacitated person where he/she was physically present in the jurisdiction (irrespective of the persons domicile or nationality). Equally, the Court could not exercise jurisdiction over a person present in another jurisdiction that was British or otherwise domiciled in England and Wales.1 The Court could order steps to be taken for the return of the person to E&W but there was no obligation on the state where the person was physically present to recognise and enforce such an order.
This created significant problems for families of incapacitated adults who sought redress for their incapacitated relative present outside the jurisdiction. The usual answer was that an order of the Court of protection was not binding in another jurisdiction and the family would invariably need to seek legal advice from a foreign lawyer in the other jurisdiction.
Jurisdictional changes introduced by Schedule 3:
Schedule 3 has fundamentally changed these rules. Now the Court of Protection has jurisdiction over a person or his/her property:
- If he/she is habitually resident in E&W (whatever his nationality and whether or not he has any assets in E&W); or
- If he/she is present in E&W (but not habitually resident) and the matter is urgent.
The Court also has jurisdiction over a person’s property in E&W whatever his residence, habitual residence or nationality.
Thus primary jurisdiction will usually be afforded to the Court of Protection where the incapacitated adult is habitually resident in E&W. Habitual residence is a much wider test compared to “physical presence” in the jurisdiction under the old law. Although there is no statutory definition of habitual residence it is a term that is commonly applied in other fields. A helpful analysis was given by the High Court in Marinos v Marinos  EWHC 2047 within the context of EU law: “The place where the person had established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account”. Thus, as long as the application is not urgent, someone could be physically present elsewhere at the time of an application to the Court of Protection as long as it can be established that they have a sufficiently strong link to England and Wales.2 Clearly each case will need to be determined on its own facts to ascertain whether the test is met.
However, Schedule 3 does not stop there. It also provides for two subsidiary forms of jurisdiction:
i) Nationality jurisdiction over a person or his/her property If he/she is a British citizen with a closer connection to E&W and the country of habitual residence has not taken jurisdiction and has been informed of the E/W application.
ii) Transfer of jurisdiction between E&W and another state that has primary jurisdiction if it is of the opinion that the matter is better dealt with in E&W as the state of nationality, or former residence or where the property is situated.
Aside from the change from “physical presence” to “habitual residence” within the context of primary jurisdiction, these subsidiary routes provide for an even wider expansion of the Court of Protection’s jurisdiction in relation to incapacitated adults- extraordinarily so if one considers the ramifications in practice. It is anticipated that these changes to the private international law rules of E&W will provide for increased applications to the Court of Protection, which as a result of Schedule 3, is intended to have much wider scope in terms of cross border matters.
However, despite the fact that our domestic law has specifically legislated for this subsidiary jurisdiction, any attempt by the Court of Protection to exercise it under the nationality/transfer provisions under Schedule 3 is, at present, unlikely to be successful. This is because such subsidiary jurisdiction is only applicable as between Contracting States to the Convention. For a state to become a Contracting State it must have ratified the Convention. As explained earlier, the UK has ratified the Convention for Scotland but not E&W.3 Thus, even though the Convention has in fact been fully implemented within the domestic law of E&W through Schedule 3, until the UK formally ratifies the Convention for E&W, it cannot be regarded as a Contracting State. The practical effect of this is that, while the Court of Protection may seek to exercise subsidiary jurisdiction on behalf of a British national or seek to exercise jurisdiction under the transfer provisions, the other State (of primary jurisdiction) has no obligation under international law to adhere to this request.
However, it could be argued that under the MCA the Court of Protection has the jurisdiction to receive a request from a Contracting State even though it cannot make such a request. For example, Germany could make a request, seemingly outside the terms of the Convention, and the Court of Protection could still accept jurisdiction even though it is not a Contracting State. Bearing in mind that there are currently only 4 Contracting States to the Convention, the practical implications of this are relatively small scale.
However, what would happen if the Court of Protection seeks to invoke subsidiary jurisdiction under Schedule 3 vis-à-vis another state that is also not a Contracting State to the Convention. This is statistically a more likely scenario. The outcome would be similar- the other state would have no obligation to recognise the Court of Protection’s subsidiary jurisdiction and the specific private international rules the other state would have to be considered.
The introduction of the “habitual residence” test is a significant development in itself. This not hampered by non-ratification of the Convention as it applies when E&W is exercising primary jurisdiction on the grounds of habitual residence within the jurisdiction.
Subsidiary jurisdiction on the other had involves the Court of Protection extending its jurisdictional reach in relation to an incapacitated person habitually resident outside E&W. The Ministry of Justice is tasked with the ratification of the Convention by E&W and, while it has indicated that it is fully committed to doing so, no time frame has been provided as yet. Regrettably, until it does so, a significant and useful element of the Court of Protection’s jurisdiction under Schedule 3 will remain redundant.
1 The same would apply to an incapacitated person’s property/assets- such property/assets would usually have to be within the jurisdiction.
2 For example, an individual who lives in Span during the winter months and in E&W in the summer months could, depending on the circumstances as a whole, be habitually resident in both countries under Schedule 3.
3 As the Convention allows the distinction between territories with separate systems of law within the State, the UK was able to ratify in respect of Scotland only.