Can the Court of Protection decide personal welfare matters if P is overseas?

‘Yes’ says the court in the matter of Mrs Ann Clarke

Comment

This judgment makes it clear that the Court of Protection regime cannot be escaped by arranging for a vulnerable person to move outside England and Wales.

In difficult cases such as this one, where there are concerns about P’s personal welfare, it is welcomed that the Court is able to make enquiries, to take informal steps to de-escalate serious family disputes and to make orders where appropriate to ensure that vulnerable British Citizens are protected.

Case Details

76 year old Mrs Clarke lives with her son, MC. Her current circumstances and location were not known at the time of the hearing although she was believed to be living in Spain.

There had been previous orders made by the Court of Protection in relation to Mrs Clarke’s property in Blackpool and two of her children sought an order for her to be returned to England and Wales from Spain as well as a further order in relation to the property. MC had taken Mrs Clarke to Thailand between September 2015 and February 2016 and she had become very ill, needing hospital treatment.  It had been indicated to the Court by MC that he was proposing to take her to Thailand once more.

The Court had taken steps prior to the hearing to de-escalate the serious family dispute between MC and his siblings, which had not been effective.

It was argued that the Court of Protection lacked jurisdiction to decide a personal welfare matter for a person who was not habitually resident in the UK.

The Judge had met Mrs Clarke at previous hearings and described her as a very vulnerable person who was likely to lack capacity to make her own decisions about where to live and about who should have access to her property. Very little current information about her was available.

It was held that the Court of Protection does have jurisdiction to make orders in relation to the personal welfare of people who are not habitually resident in England and Wales (NB – it has recently been established that there is an inherent jurisdiction for the High Court to make orders for the protection of vulnerable or incapacitated individuals on the basis of their British Citizenship ( See Al-Jeffery [2016] EWHC 2151).

The Judge requested that the Official Solicitor continue to make enquiries to determine whether an order would be appropriate in this case. Whether the jurisdiction of the Court of Protection to make an order relating to personal welfare for Mrs Clarke would be exercised would depend on her welfare, the rights of all concerned, the likelihood that orders would be effective and all of the surrounding issues.

Case report: Clarke, Re [2016] EWCOP 46 (11 October 2016)