AB & Ors, Re [2025] EWCOP 27 (T3)

[2025] EWCOP 27 (T3)Case No 14027239
IN THE COURT OF PROTECTION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/07/2025
Before
THE HONOURABLE MR JUSTICE MCKENDRICK
Between
A COUNTY COUNCILApplicantAB (by her litigation friend the Official Solicitor)RespondentsMrs ORespondentMr ORespondent
Jim Hirschmann (instructed by A County Council) for ApplicantKeri Tayler (instructed by Simpson Millar LLP) for First RespondentThe second respondent neither appeared nor was representedRose Harvey-Sullivan (instructed by Duncan Lewis Solicitors) for third respondentHearing Hearing date: 18 July 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 25 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE MCKENDRICKThis judgment was delivered in public but a transparency order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of P and members of her family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.McKendrick J:Introduction
[1]These proceedings concern an adult who lacks capacity. She is anonymised in this judgment as AB. In late 2022 urgent concerns re-emerged in respect of her welfare. The applicant began proceedings in the Court of Protection and sought and obtained, at an on notice hearing, a best interests order to remove AB from the care of her family to a place of safety. Before they could implement this order, the second respondent, Mrs O unlawfully removed AB to Jamaica. She has been there since. This judgment deals with the consequences of the actions of Mrs O.[2]AB is the first respondent and acts by way of her litigation friend the Official Solicitor. The third respondent is her father.[3]I have sat in public with a transparency order in place.

The Lengthy Background

[4]It is necessary to set out the background to these proceedings in some detail.[5]Mr and Mrs O are married with three daughters. AB is the youngest. AB has a diagnosis of autism, ADHD, behavioural difficulties with limited communication skills. She “is largely non-verbal, but can construct some short words and sentences together”. Early concerns were raised as records held by the school nurse suggest AB missed routine immunisations. AB has been known to A County Council’s Children with Disabilities team since January 2013. She attended a special school but was excluded for challenging behaviours. Concerns were noted that professionals involved had not been able to gain access to the family home. Mrs O was described as “frantic and disorganised” and on 26 February 2015 a strategy meeting was held due to concerns that Mrs O was not meeting AB’s needs. Throughout 2016 attempts by the Local Authority to visit AB were not possible. A visit was scheduled with Mrs O and a local authority team manager on 9 January 2016 but Mrs O did not attend. Responses in a letter from Mrs O caused the Local Authority to have concerns about her own health.[6]A welfare check was completed by police on 19 January 2017 and they spoke to a woman they believed to be Mrs O who spoke to them reluctantly. The police requested a joint visit with social workers who could identify AB and Mrs O for the following day, but the visit on 20 January 2017 was unsuccessful with nobody answering the door at the family home.[7]On 25 January 2017, A County Council received a call from Mrs O and a visit took place that day with social workers being able to see AB and her sisters. During this visit Mrs O would not allow the social worker into the house but agreed to sit in the social worker’s car with AB. The social worker wondered whether Mrs O may be suffering from some mental health difficulties. AB appeared cleanly dressed, content playing with her dolls and was well behaved. The case was closed with agreement from the Education department but in May 2017 concerns were raised again because AB was still not in education and appeared to be socially isolated. As a consequence, a Child and Family Assessment was started on 22 May 2017 as part of a section 47 Children Act 1989 investigation. The trigger for this investigation was Mrs O’s lack of engagement and it becoming clear that she was not working with the education team to get AB back into education. Attempts to deliver letters to the family home were met with a sealed letterbox and a notice telling professionals not to trespass on the property.[8]A child protection strategy meeting was held on 13 June 2017. It recommended that the case be escalated to an initial Child Protection Conference. It appears that the case was closed again in September 2017 as the concerns were considered educational rather than social care related. On 24 September 2022, A County Council received an adult safeguarding concern raised by the Ambulance Service. They relate to AB’s older sister. They noted that they attended a 999 call, the report noted:
“She stated she accidentally took x 60 tablets of x 30 fluoxetine and x 30 iron and B12 tablets. She told her parents that she took overdose but they did nothing, and an hour later she called an ambulance herself after feeling unwell. The police stated that the children had been taken out of school, that they were denied basic rights doctors care and food, they were not allowed to go out on their own. The patient stated she has no friends and no other family, they are not allowed to leave the house. She stated she is very frightened now her parents have been arrested, because they will throw her out of the house. The patient is very underweight withdrawn and nervous, parents are very calm about the whole situation quite chatty with crew but did not interact with the patient at all.”
[9]Mr O accepts that was what the Ambulance Service reported, but he denies his daughter was in the condition described above. I have heard no evidence about this and I am only noting the chronology as taken from local authority records. An adult safeguarding strategy meeting took place on 28 September 2022 at which it was noted that safeguarding concerns had been raised on 13 September 2022 and 20 July 2022. The notes contain an account of an unannounced visit by social workers:
“ZY (Adult Triage Team A Police) confirmed that they received a call from Liz on 23rd September 2022 around concern for welfare check for the siblings at the address. The Police attended the address, and the parents were arrested for coercive and controlling behaviour. At the address, police found [XM] to be malnourished and scared. [XM] declared to police officers that she has taken an overdose and was conveyed to the hospital. The second sibling [YM]was caring for the third sibling [AB] who they said had severe Autism. Other concerns were raised by the police officers that the parents appeared to have created their own religion and they were withholding medical treatment from their daughters, not allowing them to leave the property and brainwashing them. One of the officers who attended the address was PC C, when they arrived at the address, [YM] and [AB] have locked themselves inside a small bedroom upstairs and the police had to force entry into the bedroom.”
[10]A Police advised that when entering the home during a welfare check on 23 September 2022, they encountered AB who was non-verbal, making high pitched vocalisations and rocking when the police were present and was unable to respond to any questions. During this visit bruising to AB’s arm and leg was noted by officers. In the Safeguarding Strategy report the bruising is described as AB having “dark marks with the appearance of bruising to the back of her upper arms, shoulder and wrists.” Future attempts to visit were generally frustrated though a police officer did manage to visit on 25 November 2022 and had “no concerns in relation to [AB’s] appearance”. As of 9 December 2022, the concern was that AB’s parents were refusing access to her social worker who wanted to assess her capacity and carry out an initial needs assessment.[11]An urgent application was made to the Court of Protection on 9 December 2022 seeking a hearing on or before 23 December 2022 due to the nature of the potential risks to AB. The order sought was for a “direction to enable [A]CC to visit [AB] to assess her capacity regarding care and support and carry out an assessment of her needs pursuant to the Care Act 2014”. Additionally, a declaration was sought in relation to AB’s capacity and, if she lacked capacity, a best interests decision regarding her care and support.[12]HHJ Hodges gave various directions on 15 December 2022 and held a hearing on 21 December 2022. Mr and Mrs O did not attend having refused to accept papers from a process server who left them at their front door. HHJ Hodges declared that it was in AB’s best interests to be seen at home by professional social workers for the purposes of assessing her capacity and carrying out an initial assessment of her needs, to include a welfare check. He listed a further hearing with updating evidence.[13]On 29 December 2022 a welfare check took place. Mrs O was very agitated. The event culminated in a forced entry to the home, using police powers. Once again AB was noted as being close to non-verbal and that, on a provisional view, she lacked capacity. It was agreed between Mrs O and the social worker that a follow up telephone call would take place. The phone number provided by Mrs O and tested at the time of visit was subsequently disconnected and telephone contact that had been agreed to take place on 3 and 4 January 2023 was not possible.[14]On 11 January 2023 HHJ Hodges noted that Mr O and Mrs O had been aware of the hearing but not attended. The judge directed further evidence and made an order prohibiting Mr and Mrs O from moving AB to reside at another address without first giving 1 week of notice. On 3 February 2023 HHJ Hodges held a further hearing. At that hearing a residential home for people with autism spectrum disorder was identified for AB and a best interests order to move AB there for assessment was approved. HHJ Hodges also ordered that, save in an emergency, it was not in AB’s best interests to move to any other location prior to her move to the residential home in accordance with the transition plan approved. The transition plan made provision for AB to be temporarily moved on 6 February 2023 for assessment purposes.[15]On 6 February 2023 A Police, a secure ambulance and social work team attended Mrs O’s home and it was noted that it was empty and appeared the family had mostly left. The police forced entry to ensure AB was not there. The only person present was AB’s sister YM who was not able to confirm anything beyond that the rest of the family had moved away.[16]On 7 February 2023 A Police checked with the Border Force and found that AB, her sister XM and Mrs O had flown to Jamaica. A Police confirmed that they were treating AB as a missing person. On 10 March 2023 there was a further hearing before HHJ Hodges. It was noted that attendance on 6 February had been effected by the police but that AB had reportedly moved out a week before and had travelled to Jamaica and the property listed for sale. Directions for further evidence were given. A further hearing before HHJ Hodges resulted in an order on 21 March 2023. This order contained lengthy recitals about Mr O’s position, including the suggestion that Mrs O intended to stay in Jamaica until the conclusion of the proceedings. The case was transferred to a Tier 3 judge of the court.[17]On 12 May 2023 Mr O confirmed that AB was living with her mother and sister XM. He confirmed that he regularly speaks to his wife and AB by phone and video call. He indicated a hope that AB will return to the UK in the future. Cohen J heard the matter on 8 June 2023. He noted that AB appeared to have been habitually resident in the UK when she was removed on 6 February 2023. He determined that it was in AB’s best interests to return to England and Wales and noted that the applicant had agreed not to seek enforcement of the order provided Mrs O engaged with the process of AB being assessed. He ordered Mr and Mrs O to facilitate AB’s return by no later than midnight on 7 July 2023. Permission was given for the instruction of an Independent Social Worker and to liaise with the British High Commission in Jamaica regarding a welfare check being carried out of AB in Jamaica.[18]On 21 June 2023 Mr O confirmed Mrs O’s contact details and that her address was in Jamaica. On 3 August 2023 the matter came before Roberts J. Time was extended for the return of AB to midnight on 18 August 2023, failing this there was permission for an independent legal expert to be instructed to advise in relation to the legal framework in Jamaica. Various other directions including for additional expert independent social work evidence and disclosure orders were made, including for Mr AB to provide the contact details of any person who can provide details of AB’s whereabouts and circumstances in Jamaica.[19]Mr O confirmed that on 16 August 2023 he had spoken to XM on her mobile and had heard AB and Mrs O singing happily away. He was satisfied, from what he heard, that AB was happy, safe and well. He was unable to confirm AB’s address. His ability to communicate with Mrs O appeared to have reduced since he had given the Court her contact details and he now relied on XM for contact with Mrs O.[20]On 29 August 2023 it was confirmed by the Foreign, Commonwealth & Development Office that “the British High Commission in Kingston were not able to conduct a welfare check at address [ ] This was primarily because all request for welfare checks regarding adult social care must be done through local UK police. We advise reporting your concerns directly to UK police, who can refer your concerns to Jamaican law enforcement for an investigation via INTERPOL channels. Once this is done, please let us know as we would be happy to express interest in the investigation. However, we cannot interfere in any proceedings or seek a specific outcome.”[21]The matter returned to court and was heard by Williams J on 15 September 2023. He made an order attaching a penal notice against Mrs O. The order required AB “to return to England and Wales and live in the family home “and not to be removed once there. The return was to be given effect to by Mrs O by no later than midnight 22 September 2023. The Chief Constable of A Police Force was also invited to assist the Court. Upon return AB’s passport was to be held by the High Court tipstaff.[22]On 22 September 2023 Mr O sent an unsealed order made at the hearing on 15 September 2023 to his daughter XM, and he was of the view that she blocked him following this.[23]A few further orders were made and then little then took place for some time until the applicant made an application dated 20 February 2025 to withdraw the proceedings. On 6 March 2025 a judge directed the application be heard at a hearing. The application came before me on 19 March 2025. I was concerned that I had very little evidence about AB nor of the position as regards service of orders upon Mrs O. As such I adjourned A County Council’s application for permission to withdraw the proceedings generally, and gave directions for detailed further evidence from Mr O and A County Council – largely with a view to identifying where AB was located.[24]I directed Mr O to set out with necessary exhibits all communications between himself and Mrs O and his children in Jamaica. I required him to attend the Royal Courts of Justice in person at a hearing one week later and made clear he may be required to be sworn and give evidence at that hearing. I directed that Mrs O could be served with the order by alternative means such as WhatsApp.[25]On 28 March 2025 the case returned before me. I was prepared to hear oral evidence from Mr O. However prior to entering the witness box he informed his counsel he believed YM, his daughter in England, had contact details for XM and likely Mrs O in Jamaica. I therefore directed YM to file and serve a witness statement setting out everything she knew about the whereabouts of AB and Mrs O. I directed she attend court at the adjourned hearing to give sworn evidence. She filed a witness statement providing a mobile telephone number for XO and the landline for Mrs O in Jamaica. She applied to vary the order requiring her to attend court, which I granted and she was not required to attend court.[26]Third party disclosure orders were made against(i) the Department of Work and Pensions to confirm what information they held in respect of Mrs O and AB, specifically seeking to confirm whether they were registered for any benefits, what contact details were held for them and to what bank account any applicable benefits were being paid;(ii) His Majesty’s Passport Office confirming the details of the passports for Mrs O and AB;(iii) against British Airways to confirm the details of the flights taken by Mrs O and AB on 6 February 2023 and who paid for the flight tickets and how. A further hearing was listed for 4 April 2025.[27]Matters had moved on as a result of the various orders.a. The Court was in possession of a Jamaican landline number for Mrs O, a mobile phone number for XM and evidence that the three were residing at the same location.b. The Court received confirmation from British Airways who confirmed their understanding that Mrs O “was the payment card holder who paid for the tickets”.c. AB’s representatives were directed to draft a letter to Mrs O (to be sent and served by the local authority) summarising the litigation, noting that the Court would need evidence related to AB’s welfare, noting that the Court had considerable enforcement powers at its disposal and appending the orders made to date in the case. An injunctive order was also to be served upon Mrs O and XM, backed by a penal notice, requiring them to provide, by email, information in relation to AB’s wellbeing within 3 days of deemed service and further, within 7 days of the order being deemed served, organise a Microsoft Teams Call between AB “her representatives and a representative from the A County Council adult social care team”d. Permission for alternative service or orders, namely by text message on XM, was granted and it was ordered that this would amount to deemed service upon Mrs O.e. The Court directed it receive a written update from A County Council by 16 April 2025 and for A County Council to file a COP9 with the proposed way forward by 9 May 2025.[28]A COP9 based upon an agreed position was sent to the Court on 9 May 2025. It reflected that there had been various developments:a. A process server had successfully served XM (and so Mrs O) by sending the two orders dated 4 April 2025 together with a letter drafted by AB’s representatives on 10 April 2025. The letter summarised the injunctive orders and gave contact details (email and phone number) for AB’s solicitor.b. On 10 April 2025, Mr O spoke to Mrs O and brought her up to speed in relation to matters including why the letter had been sent seeking an update in relation to AB’s welfare. Mrs O made clear on a further call on 13 April 2025 that she had not sent the information requested to AB’s solicitor, Mrs O raised the issue of her application to set aside the first order of the Court and that she was still waiting from a response from the Court on this matter. Mr O also saw AB during this call and considered that she appeared well.c. On 15 April 2025 XM and Mrs O both said to Mr O that they would send on information about AB’s welfare.d. On 22 April 2025 XM confirmed that the information requested by the court and the application form to set aside the original order had not been sent. Mr O repeated the importance of XM and Mrs O complying with Court orders on 12 May 2025. XM and Mrs O claimed WiFi issues were impacting their communication with Mr O.e. UK Police requested a welfare check in respect of AB utilising Interpol. They were able to confirm that the Jamaican authorities had completed it giving the following response: “Relative to the Safety and Welfare check requested for [AB]… our local Law Enforcement authorities visited the address on Wednesday, April 30, 2025 which was confirmed as [redacted] British Born, of Jamaican parentage; [Mrs O] [redacted] United Kingdom, was seen and spoken to, she confirmed that she left England for Jamaica along with her two daughters, including one considered a vulnerable adult, [AB]. [Mrs O] confirmed that AB is indeed non-verbal, severely autistic and has severe learning difficulties, so requires constant care, as stated in request for safety and welfare check. [Mrs O] however explained that she had to leave England with her special needs daughter after what she described as constant abuse by state agencies, including social services and the police. The experiences she explained borders on racism, caused by her majority white neighbours, which forced her to move from an area. The O Family were the only non-white family in area. Her daughter [AB], was observed sitting on the veranda been fed by her mother. She appeared to be in good physical health and seem quite animated as she communicated with her mother and sister. [Mrs O] continues to use the phone number listed’.f. An order was made for a further letter to be sent to Mrs O which would include a link from which she could download the relevant Court papers – this letter was to be deemed served when messaged to XM’s number and sent by way of recorded delivery to the address where the Jamaican Police confirmed AB is living. The letter requested an email address was provided in order for a link to be set up to enable Mrs O to access the Court papers.g. Mr O was directed to provide a further witness statement in relation to the contact that he had had with Mrs O, AB and XM since 2 April 2025.h. A further hearing was listed on 18 July 2025.[29]Mr O provided a statement detailing his contact with Mrs O, AB and XM. He noted that he had had three video calls of a duration of more than 30 minutes during which he was able to speak directly to AB.[30]The DWP disclosure makes clear that Mrs O, as AB’s appointee, has been claiming AB’s benefits, and attendance allowance in her own name, continuously before and since she left England and Wales for Jamaica in February 2023. It does not appear she informed the DWP of the change in AB’s address. A County Council tell me they will inform the DWP of the change in AB and Mrs O’s address.[31]I heard this matter again on 18 July 2025. A County Council and the Official Solicitor submitted I should make further disclosure orders. A County Council informed me they wished to instruct Jamaican lawyers to begin proceedings in Jamaica to invoke the Jamaican Supreme Court’s inherent jurisdiction to make a return order. I was invited to list the matter for another hearing. I was asked to make a costs order against Mrs O. Neither party ruled out an application for contempt of court against Mrs O, or indeed Mr O. Mr O’s position was that the proceedings should be dismissed.[32]I have decided that the appropriate order is to stay the proceedings and granted permission to the parties to file a COP9 application for the stay to be lifted and for consideration of any further directions or orders. Should none be filed within six months the proceedings will stand dismissed with no order as to costs.

Discussion

[33]This judgment is produced for two reasons. First, I remain concerned about AB’s welfare in Jamaica notwithstanding the fact the orders made by this court have led to her being located and seen by the Jamaican authorities. This judgment will therefore be sent to the A Police Force in the UK, the Jamaican Police and the consular team at the British High Commission in Kingston Jamaica. A County Council will impress upon those authorities that AB is very vulnerable and that there is an alarming history of safeguarding concerns in respect of AB. Furthermore, the authorities will be reminded that Mrs O had not authority to remove her from England and Wales and did so contrary to orders of this court. Mrs O has been served with orders of this court and she has continued to act in defiance of those orders.[34]Secondly, this judgment is produced because there were steps that could have been taken to locate AB earlier, when it became clear Mrs O would not comply with the return orders. It may be helpful for practitioners in the Court of Protection to understand the steps that can be taken to locate missing persons. Such orders in the High Court are often used to locate missing children. This was made clear in HM and PM and KH [2010] EWHC 870 Fam - a decision of Munby LJ (as he then was). He said this at paragraphs 34 to 36:34. None of these various orders would be thought surprising or unusual by those familiar with the practice of the Family Division when trying to locate and retrieve missing or abducted children. But before turning to consider the appropriateness of such orders being made in a case, such as this, where the abducted person is not a child but a vulnerable adult, there are two aspects of the jurisdiction which, however familiar to expert practitioners specialising in this field, merit some further elaboration.35. The first relates to the power of the court to order third parties to provide information.36. It has long been recognised that, quite apart from any statutory jurisdiction (for example under section 33 of the Family Law Act 1986 or section 50 of the Children Act 1989), the Family Division has an inherent jurisdiction to make orders directed to third parties who there is reason to believe may be able to provide information which may lead to the location of a missing child. Thus orders can be made against public authorities (for example, Her Majesty's Revenue and Customs, the Benefits Agency, the DVLA, local authorities or local education authorities, etc, etc) requiring them to search their records with a view to informing the court whether they have any record of the child or the child's parent or other carer. Similar orders can be directed to telephone and other IT service providers, to banks and other financial institutions, to airline and other travel service providers - the latter with a view to finding out whether the missing child has in fact left the jurisdiction and, if so, for what destination - and to relatives, friends and associates of the abducting parent. In appropriate cases, though this is usually confined to relatives, friends and associates, the court can require the attendance at court to give oral evidence of anyone who there is reason to believe may be able to provide relevant information. Compliance with such orders can, where appropriate, be enforced by endorsing the order with a penal notice and then, in the event of non-compliance, issuing a bench warrant for the arrest and compulsory production in court of the defaulter.[35]It may also be helpful to refer to Re S (Ex Parte Orders) [2001] 1 FLR 308 at page 320 and also London Borough of Hackney v A, B and C [2024] EWCOP 33 (T3). I am satisfied that the Court of Protection can make such third party disclosure orders.[36]In addition to these powers, the power to compel persons to file evidence and attend court to provide sworn evidence is a useful tool, used sparingly, to assist to locate missing persons. It is frequently used in the Family Division to locate children. It took two directions to file witness statements and attend court to give sworn evidence (orders directed to Mr O and his daughter, YM) for the landline number to be produced to enable the Jamaican police to locate AB.[37]It follows therefore that the agreed position of the parties at the hearing before me in March 2025, that permission for these proceedings to be withdrawn should be given was, in my judgement, misconceived. Counsel for A County Council told me his instructions were to seek to permission to withdraw the proceedings albeit his client’s position was that it was in AB’s best interests to return to reside in England and Wales.[38]I have not overlooked the question of jurisdiction between March and July 2025, as I have made a series of order to locate AB. As I am sitting in the Court of Protection, jurisdiction is set out as follows: Section 63 of the MCA 2005 provides as follows:
"Schedule 3— (a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000[6] (Cm 5881) (in so far as this Act does not otherwise do so), and (b) makes related provision as to the private international law of England and Wales."
Schedule 3 (of the MCA 2005) applies to an 'adult', who is defined for these purposes as a person who "as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests, and has reached 16" (see Schedule 3, para.4 ibid.). Schedule 3, para.7 MCA 2005 provides, materially, as follows:
"(1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to— (a) an adult habitually resident in England and Wales, (b) an adult's property in England and Wales, (c) an adult present in England and Wales or who has property there, if the matter is urgent, or (d) an adult present in England and Wales, if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to him. (2) An adult present in England and Wales is to be treated for the purposes of this paragraph as habitually resident there if— (a) his habitual residence cannot be ascertained, (b) he is a refugee, or (c) he has been displaced as a result of disturbance in the country of his habitual residence". 'Protective measures' (referred to in para.7(1)(d) set out above) are defined in the MCA 2005 as follows: (per Schedule 3, para.5): "(1) "
Protective measure" means a measure directed to the protection of the person or property of an adult; and it may deal in particular with any of the following— (a) the determination of incapacity and the institution of a protective regime, (b) placing the adult under the protection of an appropriate authority, (c) guardianship, curatorship or any corresponding system, (d) the designation and functions of a person having charge of the adult's person or property, or representing or otherwise helping him, (e) placing the adult in a place where protection can be provided, (f) administering, conserving or disposing of the adult's property, (g) authorising a specific intervention for the protection of the person or property of the adult".[39]As with children, so it is with vulnerable adults: habitual residence is key to jurisdiction. Counsel for Mr O has never (rightly, I believe) submitted I had no jurisdiction, however, she has, understandably, come closer to submitting that AB is now habitually resident in Jamaica. I certainly accept that there is a clear and arguable case that AB may have lost her habitual residence in England and Wales and at some stage since February 2023 she may have become habitually resident in Jamaica. See the helpful discussion of incapacitated adults, abduction and habitual residence set out by Cobb J (as he then was) in QD (Jurisdiction: Habitual Residence) [2019] EWCOP 56; [2020] COPLR 633. I note in particular paragraphs 10-12:
“10. Habitual residence is a question of fact, to be determined by reference to a wide range of circumstances of the particular case; it is not a legal concept. The test of habitual residence promulgated by the European Court (and adopted domestically) is 'the place which reflects some degree of integration by the [child/adult] in a social and family environment in the country concerned'. Given the pivotal significance of the concept of 'habitual residence' in family law statutes and instruments, the phrase has generated significant commentary in domestic family law jurisprudence; it has been authoritatively established that interpretation of the phrase 'habitual residence' in the context of the MCA 2005 should follow the same approach. In this regard, I have had regard to the comprehensive judgment of Moylan J (as he then was) in An English Authority v SW and others [2014] EWCOP 43. I draw attention specifically here to [64]:- "Given the close links, in particular between the 2000 Convention and the 1996 Child Protection Convention, as explained in the Lagarde Report; given the relationship between the 2000 Convention and the MCA; and for general policy considerations as referred to by Lady Hale in [Re A [2013] UKSC 60], it is clear to me that the definition of "habitual residence" under the MCA should be the same as that applied in other family law instruments, including BIIa". Thus, for these, and related, principles it is helpful to consider the Supreme Court's decisions in Re A [2013] UKSC 60, [2013] 3 WLR 761 (in particular the 'thread-drawing' paragraph [54] in the judgment of Lady Hale), and Re B [2016] UKSC 4, [2016] 2 WLR 557 (in particular at [39] and [45]). 11. In the context of the Court of Protection proceedings, my attention was specifically drawn to the judgment of Munby J (as he then was) in Re PO [2013] EWHC (CoP). Given the significance of the principles enunciated there to the facts of this case I set out the key passages below in full: [14] "Habitual residence" is, no doubt designedly, defined neither in the Convention nor in the 2005 Act, though there is an authoritative Explanatory Report on the Convention drawn up by Paul Lagarde dated 5 January 2000. For present purposes I need refer to only three paragraphs of the Lagarde report. In paragraph 49 he points out that: "No definition was given of habitual residence, which despite the important legal consequences attaching to it, should remain a factual concept." In paragraph 50 he says: "The change of habitual residence implies both the loss of the former habitual residence and the acquisition of a new habitual residence. It may be that a certain lapse of time exists between these two elements, but the acquisition of this new habitual residence may also be instantaneous on the simple hypothesis of a move of the adult concerned when this has occurred on a long-term if not final basis. This is then a question of fact, which it is for the authorities called upon to make a decision to assess." In paragraph 51 he notes that: "The Commission did not discuss again certain questions connected with the change of habitual residence which were debated in detail during negotiations on the Convention on the Protection of Children. It thus implicitly accepted the solutions which had been arrived at there. Therefore, where the change of habitual residence of the adult from one State to another occurs at a time when the authorities of the first habitual residence are seised of a request for a measure of protection, the perpetuatio fori ought to be rejected, in the sense that the change of habitual residence ipso facto deprives the authorities of the former habitual residence of their jurisdiction and obliges them to decline its exercise." [15] Helpful assistance is given by the decision of Hedley J in Re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] EWHC 1926 (Fam), [2010] COPLR Con Vol 893. The facts in that case were very different from those with which I am here concerned. For present purposes it suffices to note that the proceedings related to an elderly woman, MN, habitually resident in California, who had been removed from there to Canada and thence to this country in circumstances which, it was said, involved a breach of the terms of Part 3 of an advance directive signed by her. [16] Hedley J's careful and compelling judgment repays reading in full. For immediate purposes I can confine quotation to what he said in paras 22-23: "It follows that, in my judgment, the question of authority to remove is the key in this case to the question of habitual residence. Habitual residence is an undefined term and in English authorities it is regarded as a question of fact to be determined in the individual circumstances of the case. It is well recognised in English law that the removal of a child from one jurisdiction to another by one parent without the consent of the other is wrongful and is not effective to change habitual residence … It seems to me that the wrongful removal (in this case without authority under the directive whether because Part 3 is not engaged or the decision was not made in good faith) of an incapacitated adult should have the same consequence and should leave the courts of the country from which she was taken free to take protective measures. Thus in this case were the removal 'wrongful', I would hold that MN was habitually resident in California … If, however, the removal were a proper and lawful exercise of authority under the directive, different considerations arise. The position in April 2010 was that MN had been living with her niece in England and Wales on the basis that the niece was providing her with a permanent home. There is no evidence other than that MN is content and well cared for there and indeed may lose or even have lost any clear recollection of living on her own in California. In those circumstances it seems to me most probable that MN will have become habitually resident in England and Wales and this court will be required to accept and exercise a full welfare jurisdiction under the Act pursuant to para 7(1)(a) of Sch 3. Hence my view that authority to remove is the key consideration." I respectfully agree". (emphasis by underlining added). 12. In relation to that important passage from Re MN (Recognition and Enforcement of Foreign Protective Measures) set out in [15] of the Re PO decision (reproduced in [11] above) Munby J said this: "[18] In the case of an adult who lacks the capacity to decide where to live, habitual residence can in principle be lost and another habitual residence acquired without the need for any court order or other formal process, such as the appointment of an attorney or deputy. Here, as in other contexts, the doctrine of necessity as explained by Lord Goff of Chieveley in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 75, applies: see the analysis in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, paras 20-21. Put shortly, what the doctrine of necessity requires is a decision taken by a relative or carer which is reasonable, arrived at in good faith and taken in the best interests of the assisted person. There is, in my judgment, nothing in the 2005 Act to displace this approach. Sections 4 and 5, after all, pre-suppose that such actions are not unlawful per se; they merely, though very importantly, elaborate what must be done and provide, if certain conditions are satisfied, a statutory defence against liability: see the important analysis of Baker J in G v E (Deputyship and Litigation Friend) [2010] EWHC 2512 (COP), [2010] COPLR Con Vol 470, especially paras 17-18, 56-57. …. [20] Of course, the doctrine of necessity is not a licence to be irresponsible. It will not protect someone who is an officious busybody. And it will not apply where there is bad faith or where what is done is unreasonable or not in the best interests of the assisted person. Thus there will be no change in P's habitual residence if, for example, the removal has been wrongful in the kind of circumstances with which Hedley J was confronted in Re MN…" (emphasis by underlining added).” "Given the close links, in particular between the 2000 Convention and the 1996 Child Protection Convention, as explained in the Lagarde Report; given the relationship between the 2000 Convention and the MCA; and for general policy considerations as referred to by Lady Hale in [Re A [2013] UKSC 60], it is clear to me that the definition of "habitual residence" under the MCA should be the same as that applied in other family law instruments, including BIIa". [14] "Habitual residence" is, no doubt designedly, defined neither in the Convention nor in the 2005 Act, though there is an authoritative Explanatory Report on the Convention drawn up by Paul Lagarde dated 5 January 2000. For present purposes I need refer to only three paragraphs of the Lagarde report. In paragraph 49 he points out that: "No definition was given of habitual residence, which despite the important legal consequences attaching to it, should remain a factual concept." In paragraph 50 he says: "The change of habitual residence implies both the loss of the former habitual residence and the acquisition of a new habitual residence. It may be that a certain lapse of time exists between these two elements, but the acquisition of this new habitual residence may also be instantaneous on the simple hypothesis of a move of the adult concerned when this has occurred on a long-term if not final basis. This is then a question of fact, which it is for the authorities called upon to make a decision to assess." In paragraph 51 he notes that: "The Commission did not discuss again certain questions connected with the change of habitual residence which were debated in detail during negotiations on the Convention on the Protection of Children. It thus implicitly accepted the solutions which had been arrived at there. Therefore, where the change of habitual residence of the adult from one State to another occurs at a time when the authorities of the first habitual residence are seised of a request for a measure of protection, the perpetuatio fori ought to be rejected, in the sense that the change of habitual residence ipso facto deprives the authorities of the former habitual residence of their jurisdiction and obliges them to decline its exercise." [15] Helpful assistance is given by the decision of Hedley J in Re MN (Recognition and Enforcement of Foreign Protective Measures) [2010] EWHC 1926 (Fam), [2010] COPLR Con Vol 893. The facts in that case were very different from those with which I am here concerned. For present purposes it suffices to note that the proceedings related to an elderly woman, MN, habitually resident in California, who had been removed from there to Canada and thence to this country in circumstances which, it was said, involved a breach of the terms of Part 3 of an advance directive signed by her. [16] Hedley J's careful and compelling judgment repays reading in full. For immediate purposes I can confine quotation to what he said in paras 22-23: "It follows that, in my judgment, the question of authority to remove is the key in this case to the question of habitual residence. Habitual residence is an undefined term and in English authorities it is regarded as a question of fact to be determined in the individual circumstances of the case. It is well recognised in English law that the removal of a child from one jurisdiction to another by one parent without the consent of the other is wrongful and is not effective to change habitual residence … It seems to me that the wrongful removal (in this case without authority under the directive whether because Part 3 is not engaged or the decision was not made in good faith) of an incapacitated adult should have the same consequence and should leave the courts of the country from which she was taken free to take protective measures. Thus in this case were the removal 'wrongful', I would hold that MN was habitually resident in California … If, however, the removal were a proper and lawful exercise of authority under the directive, different considerations arise. The position in April 2010 was that MN had been living with her niece in England and Wales on the basis that the niece was providing her with a permanent home. There is no evidence other than that MN is content and well cared for there and indeed may lose or even have lost any clear recollection of living on her own in California. In those circumstances it seems to me most probable that MN will have become habitually resident in England and Wales and this court will be required to accept and exercise a full welfare jurisdiction under the Act pursuant to para 7(1)(a) of Sch 3. Hence my view that authority to remove is the key consideration." I respectfully agree". (emphasis by underlining added). "[18] In the case of an adult who lacks the capacity to decide where to live, habitual residence can in principle be lost and another habitual residence acquired without the need for any court order or other formal process, such as the appointment of an attorney or deputy. Here, as in other contexts, the doctrine of necessity as explained by Lord Goff of Chieveley in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 75, applies: see the analysis in Re S (Adult Patient) (Inherent Jurisdiction: Family Life) [2002] EWHC 2278 (Fam), [2003] 1 FLR 292, paras 20-21. Put shortly, what the doctrine of necessity requires is a decision taken by a relative or carer which is reasonable, arrived at in good faith and taken in the best interests of the assisted person. There is, in my judgment, nothing in the 2005 Act to displace this approach. Sections 4 and 5, after all, pre-suppose that such actions are not unlawful per se; they merely, though very importantly, elaborate what must be done and provide, if certain conditions are satisfied, a statutory defence against liability: see the important analysis of Baker J in G v E (Deputyship and Litigation Friend) [2010] EWHC 2512 (COP), [2010] COPLR Con Vol 470, especially paras 17-18, 56-57. …. [20] Of course, the doctrine of necessity is not a licence to be irresponsible. It will not protect someone who is an officious busybody. And it will not apply where there is bad faith or where what is done is unreasonable or not in the best interests of the assisted person. Thus there will be no change in P's habitual residence if, for example, the removal has been wrongful in the kind of circumstances with which Hedley J was confronted in Re MN…" (emphasis by underlining added).”
[40]I have not had to determine AB’s habitual residence. No party had submitted I have no jurisdiction. Mrs O has filed no evidence as to AB’s circumstances nor has she sought to explain or justify her decision to remove AB in February 2023. Mr O has not sought to file evidence in respect of AB’s situation in Jamaica for the purposes of submitting the factual evidence before the court now demonstrates AB is habitually resident in Jamaica. In any event, I would have been satisfied my limited orders made to locate AB fell very much within the jurisdiction set out by Holman J in Amina Al Jeffrey v Mohammed Al-Jeffrey (Vulnerable Adult: British Citizen) [2016] EWHC 2151 (Fam). Furthermore, even if she were habitually resident in Jamaica, I consider this court retained a residual jurisdiction in respect of the orders previously made when it was obvious this court had jurisdiction based on AB’ habitual residence, because the orders I made were related to, and ancillary to, the previous return orders. For these reasons, albeit there was no dispute, I have satisfied myself that there has been jurisdiction for me to make the orders between March and July 2025 to locate AB. If a form COP 9 is filed asking me to make a return order, I may need to pause to consider jurisdiction more fully.[41]I should also add that whether or not there is to be an application for contempt is one for the applicant and Official Solicitor. There appeared to be a reluctance to consider any form of contempt against Mrs O because it was felt to be lacking in utility because she is in Jamaica. However, directions and orders made in March 2025, clarified that Mrs O likely owns fifty percent of the family home. The possibility of confiscation of Mrs O’s interest in the family home pursuant to COP Rule 21.9 (1) if she were found to be in contempt of court, certainly appeared to encourage Mr O to cooperate.[42]It may well be that the combination of:(i) the DWP’s likely consideration of terminating AB and Mrs O’s benefits;(ii) and the potential for the parties to make clear to Mrs O that if she return to England and Wales with AB, they would not pursue contempt proceedings against her; and(iii) nor would they seek a costs orders pursuant to COP Rule 19.5 (1), will encourage Mrs O and AB to return. That is a matter for them.[43]Notwithstanding the fact AB has not returned to this jurisdiction, I consider the order for a stay is appropriate. The applicant local authority have themselves met with Jamaican lawyers to consider an application there for a return order in that jurisdiction. They tell me they will continue to liaise with the UK police. For these reasons, having located AB and ever mindful of the need for this court to take a proportionate approach, I see only the very limited role, which I have described above, for this court going forward.[44]I thank all counsel for their assistance and ask they agree an order to reflect this judgment.