Neath Port Talbot Country Borough Council v CK & Ors [2025] EWCOP 47 (T3)

[2025] EWCOP 47 (T3)Case No COP 20009483
COURT OF PROTECTION
Venue SITTING AT THE CIVIL AND FAMILY COURT IN CARDIFF, Cardiff Civil and Family Justice Centre, 2 Park St, Cardiff CF10 1ETDate 12/12/2025
Before
MRS JUSTICE MORGAN
Between
NEATH PORT TALBOT COUNTY BOROUGH COUNCILApplicantCK (by his litigation friend, Nicola Sanders)RespondentsDKRespondentEKRespondent
Francesca Gardner (instructed by the local authority solicitor) for ApplicantIan Brownhill and Celia Reynolds (instructed by Reeds Solicitors) for RespondentHearing Hearing date: 12 December 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 12 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE MORGANThe 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 the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]At the centre of this application is CK who is now 75 and has been diagnosed with vascular dementia. He is living at the moment at Z Care home. Until April 2024, and for the 35 years before then he had lived in Spain. The application before the court is brought in relation to the arrangements for his residence and care. Most specifically as to whether it is in his best interests to return to Spain.[2]The parties to the proceedings are, the Local Authority, CK by his litigation friend Nicola Sanders, CK’s son DK and CK’s estranged wife EK. The local authority is represented by Ms Gardner of Counsel CK, by Mr Brownhill and Ms Reynolds.[3]The factual background which brings this matter before the court in outline is this. Until April of 2024 , CK and his wife EK had lived in Spain for more than 30 years. In 2018, EK 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. He 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.[4]Once in Spain, EK’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 still remains. In the early stages of these proceedings it was suggested that it had been agreed that he should return to Wales, the country of his birth and that he should not (the circumstances seemingly being that he would need care and support at the level of a care home) move to live in a care home in Spain. 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.[5]On 13 January 2025, an application was made pursuant to s 21A of the Mental Capacity Act 2005 (“MCA 2005”), to challenge a standard authorisation which came into force on 16 November 2025. Directions were made for allocation and a first hearing listed for 12 March 2025. At the hearing on 3rd April 2025, issues in respect of complications arising from most notably the question of CK’s habitual residence and the circumstances in which he came to leave Spain and come to Wales caused the matter to be reallocated to a Circuit Judge (tier 2) level. At the same hearing CK’s wife and his son were joined as respondents to the applications. HHJ Miller, with whose judgment this should be read, determined at a hearing on 10th June 2025, that CK’s habitual residence was in Spain – a position which, so it appears, was advocated for by the Litigation Friend and the Local Authority at that hearing on the basis of what was then known and on the evidence before the court at the time. As a result of that determination and in the light of the consequence which was thought to flow from it at the time, namely whether and if so how CK could be supported to return (as was his consistently expressed wish ) to Spain, the matter was reallocated to be heard by a Tier 3 judge.[6]The issues which fall to be determined at this final hearing have been identified at the interlocutory hearing on 7th October 2025. They are, perhaps inevitably, affected by the fact that decisions to be made for CK’s future have been made by a process which brought matters to the court at a time and following steps having been taken meaning there has been a lapse of time and within it a deterioration in CK’s overall condition such that the realistic options are more limited than they might otherwise have been . The issues are:[7]Would CK be fit to travel back to Spain?[8]Is there an available option in respect of CK’s residence and care in Spain?[9]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?;[10]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;[11]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;[12]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?;[13]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;[14]Whether the local authority should be appointed as financial deputy for CK.[15]Mr Brownhill for the Litigation Friend in his skeleton argument for this hearing suggested that whilst the issues had been identified as above, in reality the question as to whether there had been a change in CK’s habitual residence since the determination by HHJ Miller should be considered first since, were the Court to approach it otherwise, and arrive at a determination that it is in CK’s best interests to ‘remain in this jurisdiction and not to return to Spain for any purpose’ that determination would go beyond the scope of the temporary jurisdiction (exercised in consequence of HHJ Miller’s finding in respect of Habitual Residence ) . I agree. Habitual Residence[16]The question of Habitual Residence has occupied much of the argument at this hearing. The finding as to Habitual Residence made was not made on an interim basis or explicitly with a view to reviewing the finding when more was known. Although I accept Ms Gardner's submission that both parties - in a case which has had the very real benefit of continuity of specialist counsel- advanced their case at the hearing before the Judge on the basis that a degree of caution as to a firm and final view was appropriate because only limited information was known to the court, the tenor of that does not find its way either into the judgment or the order from that hearing. At para 13 of his order, helpfully reproduced in skeleton argument for this hearing, HHJ Miller expresses himself in the following terms:
“a. He lived and was settled there for 33 years which is a significant period. I accept that there is no evidence that he wished to or intended to return to Wales to live when he had capacity. He chose to return to Spain following his period of ill health in 2018 whilst still suffering complications; b. A was integrated into life in Spain. His permanent home was there. He built a life there over many years. He may not have spoken Spanish to any great extent nor socialised much through choice, but in all other respects his integration was complete; c. He had owned property in Spain. He owns no property in England or Wales. It is suggested that he and B lived in rented accommodation from 2011. This is also a significant commitment demonstrating integration into that community. It is a lengthy duration and was settled, stable accommodation; d. A established business in Spain; e. He held bank accounts in Spain not in the United Kingdom. His finances were operated from those accounts; f. He received health care in Spain. His medical notes from E Hospital record that he 'lives in Spain'; g. He obtained residency in Spain; h. It is clear A chose to live and make his life in Spain; i. A played no part in the decision to move him to Wales. I accept he did not understand he was moving permanently to Wales. It is accepted that he lacked the capacity at the time to make that decision. At all times since he moved to Spain and had capacity to decide, it was A's settled intention to reside and make his home there; j. It was not his decision to leave Spain and move to D. He was taken there; k. There is much objective evidence from the records and evidence from his litigation friend that he wished to return to Spain; l. Subjectively the evidence is overwhelming that A was settled in Spain and wished to live there.”
[17]This court has in my view to be careful not either inadvertently to approach its task as if acting as an appellate court in respect of the decision made on 10 June, or to substitute its own different decision on the same factual situation because it sits more easily with a best interests analysis. I recognise of course that as the determination stands, this Court retains a temporary jurisdiction pursuant to Schedule 3 MCA 2005 (7)(1)(d) but in circumstances where what is contemplated in terms of living and care arrangements for CK is for the rest of his life it seems to me that it would be stretching a reasonable understanding of what is intended to be understood by the word ‘temporary’ to embrace ‘life-long’[18]Both the applicant and the litigation friend at this hearing remind the Court that there is authority for the proposition that the Court of Protection must keep the issue of habitual residence under review to ensure that it retains jurisdiction at the date of the final substantive hearing, as to which reliance it place on London Borough of Hackney v P [2023] EWCA Civ 1213, [116]; Re LM[2023] EWCOP 69, [37-38] and on behalf of the applicant to TD BS v KD QD [2019] EWCOP 56 . Developing on from that submission, the Litigation friend submits that the doctrine of perpetuatio fori does not apply to cross-border incapacity cases regardless of whether or not the 2000 Convention applies and in support of and to illustrate that submission relies on , Re O (Court of Protection: Jurisdiction)[2013] EWHC 3932 (COP), [2014] Fam 197, [21]. I accept that it is right that the jurisdiction of the Court may change during the duration of proceedings. What is more problematic in relation to those authorities to which the court’s attention was directed in argument at this hearing when considering the obligation that the Court of Protection must keep under review the issue of habitual residence, is that it was noteworthy that in each of those authorities cited it was so as to ensure that it retains jurisdiction and not, as must be the situation with CK, so as to consider a situation where a determination that Habitual Residence is elsewhere with consequence that the court does not have jurisdiction (other than temporary protective ). It follows that the court is not reviewing whether it retains it but considering whether the factual landscape has in the intervening period altered such that CK’s habitual residence now lies in (England and) Wales. I note that in QD [2019] EWCOP 56 in which Cobb J as he then was in strikingly similar factual circumstances contemplated at para [32] not the prospect of a change in the factual basis which might cast habitual residence in a different light and lead to the English Court thereby acquiring jurisdiction but that it was possible that it might be acquired by the conferring of jurisdiction on the courts of England and Wales by Spain. It was common ground amongst counsel at this hearing that there was no authority in which the situation was as presents here.[19]By reference to The Practical Handbook on the Operation of the 2000 Protection of Adults Convention counsel for the applicant developed her submission, supported by the litigation friend that it is permissible and appropriate to review, by considering whether there has been a change in the Habitual residence of the adult concerned. In particular there is express consideration within paras 4.13 et seq What happens when the “habitual residence” of the adult changes? of the prospect that such a change may be including during pending proceedings for a measure of protection. (Explanatory Report to the convention para 51 ). Given the clarity of analysis which appears in QD I have paused to reflect carefully on whether I should accept that, HHJ Miller having reached the conclusion he did in June of this year, it is in the peculiar circumstances of this case right for me to look again at CK’s Habitual residence now. I have narrowly concluded that it is and whilst there is much that is on all fours factually with the situation facing Cobb J in QD, very different here is the very long passage of time between the reaching of the conclusion and the best interests decision to be taken at this hearing. I accept Counsel's joint submission that it is permissible and appropriate to review (in the sense discussed, rather than by critique of HHJ Miller’s original judgment) 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.[20]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 (as to which more below). 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.[21]It follows from the foregoing paragraphs that in CK’s particular circumstances in the case before me, which are, I acknowledge, unlikely to present frequently in applications falling for determination, I am satisfied that his Habitual residence at the time I have to make determinations for him is in Wales. Such connection as he has with Spain and has a prospect of with Spain, albeit that per LM the past falls to be weighed in the balance, does not provide the character of sufficient stability to found Habitual Residence there.[22]I move now therefore to consider the other matters which require determination at this hearing Would CK be fit to travel back to Spain?[23]The most up-to-date medical information on this is now some months old and indicated that ‘there is not physical contraindication to air or sea travel from the medical point of view neither do any of his medications have a direct impact on his suitability for flying’. At the hearing on 7th October 2025 an up-to-date assessment was directed from CK’s GP to come in shortly before this hearing. It has not been forthcoming. Whilst that is unsatisfactory, it is my view that the question of CK’s fitness to travel is wider than the narrow medical and pharmaceutical view given. It embraces also the social and emotional for CK in circumstances where the condition with which he is diagnosed is by definition one of deterioration and degeneration. He is 6 months on from that narrow view. I accept that he would require significant support both physical and emotional to make such a journey. His mood is characterised as depressed and the view which the local authority has formed (shared by the litigation friend) on the reports of those who care for him day to day and know him best is that the experience of making the journey to Spain is one which he is likely to find distressing, uncomfortable, disruptive and frightening. Is There an Available option in Respect Of CK’s Residence and Care in Spain?[24]I have considered carefully the evidence as to whether there is an option available for CK in Spain. CK no longer has, on the evidence, a property in Spain in which he could reside. The witness statement of Christo Ninan confirms that the previous property in which CK and EK lived in is no longer as available. It is said that it has been “lost” . EK in clarification of that description has informed the local authority that adverse impact from the running of their business meant that they lost the property. In her earlier evidence provided in these proceedings she indicated that “[CK] has no capital or assets in Spain or anywhere else”[25]An available option had been identified by the Spanish Abogada at Residencia Nuestra Señora de los Dolores Villanueva del Trabuco. It was the position of the Litigation Friend however that cost meant that this was unlikely to be a realistically available option. The litigation friend also considers it unlikely that CK could afford to fund his care privately. Having regard to the financial evidence which has been disclosed I accept the submissions that CK’s income would not be able to sustain the identified privately funded option – or other as yet unidentified privately funded options in Spain.[26]CK could, so it is understood, notionally meet the qualifying requirement for a publicly funded placement at public nursing homes in Spain under Spain’s Law 39/2006 However, CK would have to be assessed before a decision could be made as to his eligibility to access a placement through Seguridad Social, and for that he would have to return to Spain. So I hold in my mind the difficulties of travelling – which for an assessment would be exacerbated by the prospect of i) travelling back following assessment and pending determination to await the outcome were there not to be instant eligibility and provision and ii) travelling back if he were assessed as ineligible . There is no guarantee that he would be judged eligible for a public nursing home. Moreover I have the evidence which emerged from the litigation friend’s visit to CK with the solicitor on 6th October 2025 when CK expressed his view that he does not wish to return to Spain for the purposes of an assessment and would not wish to live in a care home there if one were available. He wishes only to return to live at his previous home (which he does not understand is not available to him ).I accept in this respect the view of the litigation friend that a return to Spain for the purposes of undergoing assessment, would be a confusing and potentially frightening experience for him[27]There are no other placement options which have been explored by the Local Authority in Spain. I conclude on the evidence that there are no realistic or appropriate options for CK to return to if he moves to 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:(a) reside at and receive care in any available option identified at point (ii) above; or(b) 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?[28]So far as the element of this question at (a) is concerned my determination of the absence of any identified property means that it falls away. The uncertainties and remoteness of the possibility of his being placed in a publicly funded home are such that I am not satisfied that it would be in his best interests to return for assessment. In reaching that determination, it is a factor of significant importance that CK, who was able in the relevant conversation , to comprehend the concepts both of going to Spain to be assessed and going to Spain to live in a care home, strongly expressed the view that he wanted to do neither. I find also on the evidence available before me as to his deterioration over the intervening six months since he was assessed as medically fit to travel, that it is more likely than not that he is now medically not fit to travel and even if , absent the directed medical update, I am wrong about that I am satisfied that in the wider sense he is not fit to travel and undertake the journey or journeys required. I have held in my mind thinking about CK’s best interests that even setting aside for the moment the very considerable practical and financial obstacles to him having any kind of home – whether institutional or otherwise in Spain 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. I consider now therefore the linked questions identified at (iv) (v) and (vi) in paragraph [6] above. 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.... 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?:[29]Earlier in the lifetime of these proceedings, DK urged very strongly on the court that it would be in CK’s interests to move to a different care home, within Wales, and proximately to his family here. Both DK and EK at an earlier stage raised concerns as to the quality of the care and DK in particular felt that CK would be happier in a different environment where he could be more engaged with the community and go out more. The litigation friend retains some disquiet about the care CK receives pointing to a very recent unwitnessed fall (which happily did not result in injury) and her residual unease about how it was, that he was first admitted to the home at all. Elsewhere in this judgment I have made reference to the way in which DK has described the difficulty for him of travelling to see his father but his commitment to so doing. On the evidence there are no homes available to which CK could move which are closer to his son and searches conducted have not produced any available alternatives regardless of the geographical considerations. I agree with and accept the submission of the litigation friend that the factor of the physical proximity and continuing presence by visiting of DK to CK is one of magnetic importance. It is of note, and as I see it a recognition of the realistic possibilities, that DK no longer advocates for a move of home for CK. It is not my view that it is in his best interests to explore now a move to a different home but I agree with the litigation friend that that is a matter to be kept under review in the event of any further issues with the care at the home and, importantly, in the light of any wishes CK may express.[30]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.[31]In the light of the conclusions reached those matters set out at 6 vii above do not arise. The final issue for determination at this hearing relates to the financial aspects of CK’s situation. Whether the local authority should be appointed as financial deputy for CK[32]By the time the matter came on for hearing this was no longer a contentious aspect. EK had set out in an e mail provided by the start of the hearing that she had no objection to the proposal of the appointment of financial deputy. The local authority is currently acting as appointee for CK. In support of the application the Applicant has filed a capacity assessment which concludes that CK lacks the capacity to manage his property and affairs. I accept that the presumption of capacity so to manage them is rebutted and will made the declaration under s 15 MCA 2005.[33]I accept also the submission that, there being no lasting power of attorney in place it is not appropriate that there is the mixing of finances as between EK and CK in the light of their current relationship. This had been a matter of concern to the local authority and to the litigation friend (albeit that the extent to which she wished to comment on this aspect of the litigation is limited) and I agree that it is appropriate that CK’s finances should be manged independently. There is a dispute (which I am not invited to resolve) between EK and the local authority as to whether care home fees have been paid and the extent of any money owed. I have seen the scope of that which is set out in the draft order and am content to make the order sought. Closing observations[34]It is not uncommon, sadly, for families to find themselves in situations where one of their members is diagnosed with conditions similar to CK, or is otherwise in failing health and where there are questions over their capacity, and that person is living outside of England and Wales. The parties have been at pains to emphasise that neither at this hearing or before HHJ Miller has any party invited the court to determine that the move of CK from Spain to the Z care home was made in bad faith. It is explicitly accepted by the Local Authority at this hearing hat EK and JS did what they considered to be in CK’s best interests. CK’s circumstances have however illustrated all too clearly how the well intentioned can go wrong. At the outset of this hearing the litigation friend made the following overarching submission which encapsulates the wide anxiety: ‘While the litigation friend considers that CK’s habitual residence will revert to England and Wales, the litigation friend is troubled by a conclusion which ostensibly authorises CK being removed from the country where he had chosen to live, and the perverse incentives this may create for future individuals to avoid processes which protect vulnerable adults internationally. It should be emphasised that the circumstances confronting this court are unusual and confined to their own facts’.[35]I have been asked by Counsel to consider widening the lens through which I consider the decisions to be made for CK at this hearing and, in the light of the context in which they have arisen, to make any observations which might avoid others finding themselves in the same position. It seems to me that this case and the way in which issues have developed in CK’s situation are more fact specific even than is often the case. It would be difficult even were I to embark on giving guidance (which I am not) to identify as it were, precisely what those finding themselves in like situations should do but it is less difficult to identify aspects which require particular care.[36]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 persons capacity to decide that, must be considered at an early stage. There may be all sorts of instances in which the family members doing what they think is right, regard it as the best - or perhaps even the only - decision to be made, but that does not obviate the need to ask the question, does the person have the capacity themselves to make the decision.[37]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.[38]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.[39]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.[40]It remains only to express my thanks to Counsel for their diligence and skill in presentation of their respective cases. I invite them to agree orders and submit them for approval.