The Court of Protection was faced with an application to revoke a deputyship order and the question of whether the person had moved their habitual residence outside of the UK.
Background:
This case has been going on for a long time. P was the victim of a terrible accident when he was a student at university which left him with a brain injury and a disability he would not have had otherwise. He is entitled to compensation which, according to the High Court Masters, amounted to seven figures. However, "none of those whose job it is to pursue that claim have been able to pursue it any further since Ms. Justice Henke's judgement and it is very concerning that he may lose an opportunity to benefit from that if there is any further delay."
P's mother was appointed as his property and affairs deputy by the Court of Protection. In March 2024, Ms. Justice Henke heard an application to withhold closed material but, since then, "neither the Official Solicitor nor the Court is any the wiser as to P's well-being or even his whereabouts". The mother claims that P is now living in Italy.
Decision:
The judgement started with His Honour Judge Burrows analysing whether the proceedings could continue due to the father being admitted to the hospital. He decided it could as the application is primarily about the mother who is acting as P's property and affairs deputy. The Court was satisfied that time was of the essence and that an adjournment for the father's benefit would not be in P's best interest.
He then turned to the mother's request for adjournment based on the fact that she had not had the opportunity to consider the compendium of documents received. The Judge noted that it "does not contain new documents, it is simply the compendium of the documents that are already before the parties and the Court. I note also that the mother did not bring any documents or a laptop to the hearing. She was entirely without access to any of the papers in the case, and that was her choice." Moreover, there were no new issues and most have been dealt with in the documents she and her husband prepared. His Honour Judge Burrows noted that "it is important for P that these proceedings progress. I was reluctant to adjourn for that reason."
The Court noted that the mother has precluded herself from continuing in her role as property and affairs deputy "because of her unwillingness to cooperate with those who the Court has appointed as litigation friends in the personal injury case to ensure that her son receives the money he is entitled to." As a result, it was quite clear that she could not continue as property and affairs deputy. The Court has the power under Section 16(8) of the Mental Capacity Act (MCA) 2005 to revoke or vary the appointment of a deputy if he or she is not acting in the best interest of the person and the deputyship was removed.
After confirming that the Court has jurisdiction concerning property, the Judge considered the issue of P's habitual residence. His Honour Judge Burrows ruled that there is insufficient evidence to declare that P is a resident of Italy. He noted, "Is it plausible that a person who has lived in England for a very long time with his family, who are still here, who suffers from physical and mental challenges of this degree, and who needs regular care and medication, and who lacks the capacity to make decisions around residence and care has decided, on his own, to up sticks and move to Italy where he has no contacts?" Furthermore, P would not be able to pursue the claim if he was not resident in England and Wales.
There was also mention of the case being referred to a Tier 3 Judge (High Court) with the possibility of invoking the Court's inherent jurisdiction to locate P and protect his welfare. Indeed, "P appears not to have been seen by anybody relevant to this case other than his parents."
Implications:
This case demonstrates that a person appointed as deputy should behave in the person's best interest. The courts can revoke a deputyship if they are convinced that the best interest of the person is not safeguarded. While the Court was reluctant to continue with the case and not accept the adjournment's requests, it did so due to the urgency of the case.
It also highlights that for the courts to be convinced the habitual residence has changed, it needs to be provided with concrete evidence.
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