Settlement, integration and capacity

In Re R (A Child) [2015] EWCA Civ 674, the Court of Appeal confirmed that a person can remain habitually resident somewhere for many years after they have ceased to have a permanent abode there. In the case before it, the Court of Appeal applied the now well-established principles applicable in family cases under both EU and Hague instruments in a situation where a woman had ceased to have permanent residence in the UK in 2006, and had moved around a number of countries (in particular spending 16 months in Morocco) until March 2013.

The Court of Appeal held that – although viewed at high level surprising – the judge had been correct to find that: (1) the mother had failed to settle or integrate into Moroccan life; (2) there had been domestic violence; (3) the parents had lived apart for significant periods in Morocco; (4) that the mother had really only ever integrated into the UK, where she had spent over 10 years at school and university and in work; and (5) her return to Morocco had been an extended stay while she sought a temporary harbour. In consequence, given the degree of dependence of her young daughter, her habitual residence was effectively determined by that of her mother, and therefore remained in the United Kingdom at the material time.

Questions of settlement and integration are equally relevant in the context of cases before the Court of Protection, and it is suggested that the instant case supports the propositions both that:

1. Adults with impaired capacity removed wrongfully from England and Wales will only lose their habitual residence here (and hence the Court of Protection will only lose its jurisdiction over them) after an extended period of time, especially where they have not been integrated into the second jurisdiction;

2. Conversely, adults with impaired capacity either placed into or outside England and Wales by statutory authorities will also – as a general rule – remain habitually resident in the jurisdiction of that statutory authority even if the placement lasts a considerable period of time (a proposition accepted, obiter, by Baker J in Health Services Executive of Ireland v PA & Ors [2015] EWCOP 38 at paragraph 53).

This article was written by the Court of Protection team at 39 Essex Chambers.