SV, Re [2022] EWCOP 52

Judgment giving reasons for allowing an application for an order recognising and declaring enforceable protective measures for an adult from the Republic of Ireland

SV had an eating disorder and it was decided that she should be treated at a specialist clinic in the UK as there was not such equivalent treatment available in the Republic of Ireland. The issue here was that the Hague Convention on the International Protection of Adults has not been ratified by the English authorities nor the Republic of Ireland (it has been ratified in Scotland) so a legal basis for making the reciprocal order requested by the Irish authorities fell to be determined.

In this judgment Mostyn J identifies that the answer lies in Section 63 of and Schedule 3 to the Mental Capacity Act 2005, which implemented the Convention without the need for ratification procedures, allowing the courts in England and Wales to recognise an order from another state, though at [15] he comments

“The disadvantage is that implementing the 2000 Convention by this route did not, of course, give rise to reciprocity. It did not have the effect that protective measures made here would be automatically recognised and enforced overseas, even in those countries operating the Convention.”

He then proceeds to grant the application making clear that this was an urgent matter, given SV’s ill health, and was a “matter of imperative necessity provided that all of the Schedule 3 conditions were satisfied”. Annexed to the judgment is a checklist to aid decision making in future such cases.

Read the full judgment on Bailii