Habitual residence, moving jurisdictions and ‘lawful authority’

In Re A (Habitual Residence) [2025] EWCOP 22 (T2), HHJ Millar set out a helpful worked example of determining whether a person’s habitual residence has changed following a loss of capacity, and where the move has not been at the behest of professionals, but family members.

As he held:

13. In my judgment the following reasons lead me to the conclusion that A’s habitual residence is in Spain;

(a) He lived and was settled there for 33 years which is a significant period. I accept that there is no evidence that he wished to or intended to return to Wales to live when he had capacity. He chose to return to Spain following his period of ill health in 2018 whilst still suffering complications;

(b) A was integrated into life in Spain. His permanent home was there. He built a life there over many years. He may not have spoken Spanish to any great extent nor socialised much through choice, but in all other respects his integration was complete;

(c) He had owned property in Spain. He owns no property in England or Wales. It is suggested that he and B lived in rented accommodation from 2011. This is also a significant commitment demonstrating integration into that community. It is a lengthy duration and was settled, stable accommodation;

(d) A established business in Spain;

(e) He held bank accounts in Spain not in the United Kingdom. His finances were operated from those accounts;

(f) He received health care in Spain. His medical notes from E Hospital record that he ‘lives in Spain’;

(g) He obtained residency in Spain;

(h) It is clear A chose to live and make his life in Spain;

(i) A played no part in the decision to move him to Wales. I accept he did not understand he was moving permanently to Wales. It is accepted that he lacked the capacity at the time to make that decision. At all times since he moved to Spain and had capacity to decide, it was A’s settled intention to reside and make his home there;

(j) It was not his decision to leave Spain and move to D [a care home in Wales]. He was taken there;

(k) There is much objective evidence from the records and evidence from his litigation friend that he wished to return to Spain;

(l) Subjectively the evidence is overwhelming that A was settled in Spain and wished to live there.

14. I accept that B and C had no lawful authority to move A to Wales. He had refused to sign a lasting power of attorney in Spain which indicates he objected to others making decisions about him. His permanent removal from Spain was likely to be contrary to his wishes.

15. B and C did not act in bad faith. However, options for care in an area wider than the immediate locality in which B and A lived in Spain were not explored.

16. I therefore find that A remains habitually resident in Spain.

In relation to paragraph 14, it should be noted that ‘lawful authority’ does not solely mean authority granted (for instance) under an LPA or court order.  In contrast to the position in Scotland, where ordinary residence cannot change absent such express authority,[1] it is possible for ‘lawful authority’ to take the form of a decision made relying upon the defence in s.5 MCA 2005. For an example of such a case, see Re PO [2013] EWCOP 3932.[2]  However, it is only possible to rely upon this defence where the person(s) doing so reasonably believe that they are acting in P’s best interests, which has two consequences:

• There must be some basis for that belief – i.e. a purely subjective belief that you are doing the right thing is not enough: see Re QD (Jurisdiction: Habitual Residence) (No 1)[2019] EWCOP 56 at paragraph 21;
• It is going to be very difficult to make out the grounds for the defence where the action – as here – is against all the person’s known wishes, feelings, beliefs and values, and also where appropriate steps have not been taken to comply with the other provisions of s.4 MCA 2005.

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

[1] See the cross-border guidance produced by the Law Societies of England & Wales and Scotland;

[2] Albeit that, in that case, Munby J talked of reliance upon the doctrine of necessity.  For the reasons discussed at nerdily great length here, I am not sure he was quite right to do so