Newcastle City Council v LM [2023] EWCOP 69

Final hearing as to capacity over several areas, habitual residence and LM's best interests concerning her current placement and care plan.

LM had been fostered under an Interim Care Order but she needed greater care and was moved to a home in Newcastle. This placement did not work so she was moved to a home in Scotland, where she resides now, is happy and it was agreed she could stay beyond the age of 21. She has been diagnosed with various development disorders and cognitive disorders. 

David Rees KC, sitting as a tier 3 judge, first has to decide on habitual residence and jurisdiction. He states, that at the outset of proceedings, it was clear LM was habitually resident in England but four years had elapsed so he reconsidered the question. He says there is no scope for the doctrine of perpetuatio fori to apply in Sch.3 MCA 2005 cases and concludes she continues to be resident in England partly because he attached 'magnetic importance' to the fact she was constantly subject to interim orders. It may also be that she acquires residence in Scotland after the final order. He then reviews the evidence on LM's capacity concluding she lacks capacity to, among other things, engage in sexual relations and make decisions about care, residence, internet use and to manage her finances. As to best interests, LM should stay in Scotland, even though she would probably become resident there soon and further proceedings would need to be decided in the Scottish courts.

Read the judgment on Bailii