QD (Jurisdiction: Habitual Residence) [2019] EWCOP 56

Judgment on preliminary issue concerning jurisdiction in proceedings relating to QD, diagnosed with Alzheimer’s and Parkinson’s who was living with his second wife (KD) in Spain but who flew back to the UK in the company and his son (TD) and daughter (BS) without the wife’s knowledge. They subsequently applied for a range of orders relating to QD’s care that are opposed by KD.

Counsel for the applicants argued that QD was now habitually resident in England and so the MCA 2005 could be applied or alternatively the inherent jurisdiction. Cobb J reviews the relevant provisions of the MCA and case law, in particular the guidelines set out by Munby J (as he then was) in Re PO [2013] EWHC and McFarlane LJ in Re DL. He concludes at [15] that
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"where Parliament has created a statutory scheme which is intended to be exhaustive, the common law should not go behind that scheme ……. In essence, the terms of the statute must be looked to first to see what Parliament has considered to be the appropriate statutory code, and the exercise of the inherent jurisdiction should not be deployed so as to undermine the will of Parliament as expressed in the statute or any supplementary regulatory framework. It is my clear view that the court has power to make a range of declaratory, injunctive, and other orders, only where these are necessary "to fill the gaps of law" and to enhance the Article 8 ECHR rights of the vulnerable."

In the light of that conclusion he finds that, while there is no dispute that QD does not have capacity to decide where he lives, the English courts do not have jurisdiction as, broadly: QD had capacity when he chose to live in Spain; it appears to have been his permanent home; he was receiving health care there; and his wife had initiated proceedings for legal guardianship in that country some weeks before QD was relocated to England.

He was also influenced by the fact that:

1. the move was achieved by stealth and that the 'doctrine of necessity' could not convert what was a wrongful act on their part into a justified act.”
2. it would not be appropriate to assume jurisdiction based on 'urgency': that would be justified only to avert an immediate threat to life or safety, or there is an immediate need for further or other protection
3. to apply the inherent jurisdiction would "subvert the predictable and clear framework of the MCA 2005 in an unprincipled way."

He did, though, make protective measures orders to provide that QD remained where he was until the national authorities in Spain have determined what should happen next.

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