(Court of Protection, Sir James Munby, the President of the Court of Protection, 13 December 2013)
The 88-year-old woman previously lived in England in her own home with family and other support. Two of the woman's children were her financial attorneys under an enduring power of attorney. The woman moved to Scotland initially to her son's home and then to a local care home. The new local authority applied for a welfare guardianship order under the Adults with Incapacity (Scotland) Act 2000 on the basis that the woman was not habitually resident in Scotland but as she was present there an the application needed to be heard urgently. The Sheriff made a welfare guardianship order and the local authority's chief social worker was nominated as the welfare guardian with personal welfare powers.
The woman's daughter applied to the Court of Protection for an order to return her to England and Wales. The local authority sought a declaration that the Court of Protection had no jurisdiction to hear the application.
The question of whether the woman was habitually resident in Scotland for the purposes of para 7(1)(c) of Sch 7 to the Mental Capacity Act 2005 was essentially a question of fact, having regard to all of the circumstances of the case. In cases of an adult who lacked capacity to decide where to live, habitual residence could change without the need for any formal process. The doctrine of necessity applied whereby a decision was taken by a relative or carer which was reasonable, in good faith and in the best interests of the person. Nothing in the 2005 Act displaced that approach.
In these circumstances there had been no kidnapping or high-handed action taken for an ulterior motive. The decision was reasonably and sensibly undertaken in agreement of three of the four children. The woman had now been in Scotland for some time and had settled into her new accommodation. She was not habitually residence and England and Wales and, therefore, the Court of Protection had no jurisdiction under para 7(1)(a) of Sch 7 to the Act.