The Honourable Mr Justice Baker :
- This reserved judgment is delivered following a hearing of three cases in which the Health Service Executive of Ireland ("the HSE") seeks orders under s.63 of and Schedule 3 to the Mental Capacity Act 2005 ("MCA 2005") recognising and enforcing orders by the Irish High Court for the detention of three young persons ("PA", "PB", and "PC") at a special unit known as St Andrew's in Northampton. The proceedings raise a number of issues about the scope and interpretation of Schedule 3. When it became known that applications in the cases of PA and PB were coming before the Court, raising very similar issues, a joint hearing was arranged, and directions given, including an invitation to the Official Solicitor to act as Advocate to the Court and to the Ministry of Justice and the Department of Health to participate in the proceedings. The former invitation was accepted, the latter was declined, although the Ministry of Justice wrote a letter setting out some views on the legal and policy issues arising in the proceedings, to which I shall refer below. Subsequently the case of PC, in which I had earlier made an order under Schedule 3 without hearing extensive legal argument, was listed for review at the same hearing.
Summary of Background: (1) PA
- PA was born on 24th October 1996. He had an extremely troubled childhood and mental health difficulties which manifested themselves from an early age. On 26th February 2010, he was placed in emergency voluntary foster care and thereafter moved placements within Ireland on no less than twenty occasions. Each placement broke down due to his challenging behaviour. An Irish care order was granted in respect of him on 3rd March 2011 because of his escalating problematic behaviour and criminal activity, as a result of which PA was considered to be a risk to himself and others, and he was placed in a special care unit. Continuing concerns were raised about his behaviour, including threats to harm others and himself and statements that he was bored of assaulting people and would like to see someone murdered. It was then decided to move PA to a privately run secure care unit in Scotland but that unit felt unable to work with him as a result of his levels of aggression and non-cooperation. Instead, he was referred to St Andrew's Healthcare in Northampton.
- On 4th October 2011, PA was transferred to St Andrew's pursuant to an order granted by Birmingham J in the Irish Court on 30th September 2011. Prior to the order being made, the procedure under Article 56 of Council Regulation 2201/2203 ('Brussels IIR') was undertaken and the requisite consent obtained from Northamptonshire County Council. All parties to the ongoing proceedings before the Irish Court were in agreement that PA's placement at St Andrew's was in his best welfare interests. On arrival at St Andrew's, he was admitted under the provisions of s.2 Mental Health Act 1983 ('MHA 1983'). On 18th November 2011, his detention was reviewed by the First-Tier Tribunal (Mental Health). The tribunal discharged PA from section. Whilst noting that PA undoubtedly required assessment in hospital and declaring themselves satisfied that he would pose a risk to others were he not in hospital, the tribunal considered that detention under s.2 MHA 1983 was neither warranted nor justified because, in essence, PA was detained at St Andrew's by virtue of the Irish order.
- Thereafter, PA has continued to reside and be treated at St Andrew's, his position being considered on a regular basis by Birmingham J until his elevation to the Irish Court of Appeal, his position being considered thereafter by other judges of the Irish High Court. For a substantial period after his admission, PA continued to manifest extremely challenging behaviour. On one occasion, riot police were summoned to attend the unit after he and another minor acquired makeshift weapons and smashed a number of light fittings. On 1st March 2012, PA, together with other (English) individuals escaped from St Andrew's after threatening staff with broken CD cases. The HSE's legal representatives sought and obtained an urgent English order under the provisions of Article 20 of Brussels IIR on the night of 1st March 2012. That order was renewed following personal attendance by Leading Counsel on 2nd March 2012. PA was found and returned to St Andrew's on 3rd March 2012.
- PA's case was further considered by Birmingham J on 17th May 2012 at which point the learned judge made an order providing for his continued detention and treatment at St Andrew's. That order was made the subject of an application for recognition and enforcement in this country under the provisions of the Family Procedure Rules, Part 31. On 23rd May 2012, sitting in the Family Division, I made an interim order under the provisions of Article 20 of Brussels IIR pending registration of the order of Birmingham J, which took place on 1 June 2012 by order of Senior District Judge Waller.
- In due course, PA was diagnosed as suffering from 'bipolarism' and a serious personality disorder. For a prolonged period thereafter, he remained extremely difficult to manage and engage in treatment and his behaviour was defiant and frequently violent. At one stage, he had to be secured and nursed on a 3:1 ratio in a separate ward from his peers to protect them from serious injury. He was also for a sustained period of time highly resistant to treatment and intervention. In the course of 2014, however, PA became more open to intervention and treatment and thereafter he has managed to maintain himself on risk level 4. This allows him to have some escorted trips into the community. In particular, he has been able to return to Ireland for the first time since he went to Scotland in May 2011, and as a result attended the High Court in Ireland on 7th October 2014 and visited his family home on 20th October 2014.
- The evidence before the High Court in Ireland is that he remains a very vulnerable young man. In the view of Dr Kelleher, the psychiatrist responsible for providing mental health services for people in his local area in Ireland, there are no facilities in the Republic of Ireland for PA which would replicate those available at St Andrew's. It is therefore the view of the HSE that his interests are best served by him remaining in St Andrew's for another period of time, subject to regular reviews. The intention of the HSE is that PA will ultimately return to Ireland and his case will continue to be kept under review by the High Court in the Republic of Ireland.
- Whilst PA has expressed his willingness, in principle, to remaining at St Andrew's for a further period of time, his compliance is of relatively recent standing. The orders made by Birmingham J when PA was a child expired upon his majority, as did the consequential 'domesticated' order in England and Wales. The HSE therefore took steps to obtain an order from the High Court in Ireland under its inherent jurisdiction in respect of vulnerable adults providing for his continued placement and treatment at St Andrew's for a period of time pending his return to Ireland. In that order, dated 23rd October 2014 (i.e. the day before his 18th birthday), the President of the Irish High Court recorded his findings, inter alia, that PA was suffering from a serious personality disorder accompanied by 'bipolarism' which continued to require treatment at St Andrew's; that his illness was of a kind and degree that was likely to continue after his 18th birthday and require a period of compulsory treatment; that on the evidence of his treating clinician at St Andrew's he met the criteria for detention in England under s.3 of the MHA 1983; and that PA "owing to an impairment of his personal faculties cannot protect his own interests". The order recorded that the Court was satisfied that there was no suitable facility available within the jurisdiction of the Irish Court and that St Andrew's was a suitable institution for the purposes of providing treatment to him. The Court therefore ordered that the HSE be authorised and permitted to place him at St Andrew's for a period of four weeks subject to review and further order of the Court.
- On 4th November, an urgent telephone hearing took place before me sitting in the Court of Protection at which I granted a time-limited order recognising and enforcing the Irish order of 23rd October. On 13th November, a psychiatrist at St Andrew's certified that PA had litigation capacity. Within these proceedings, he has therefore instructed legal representatives directly and the HSE has agreed to meet his legal costs. On 20th November, the Irish Court extended the order of 23rd October for a further four weeks. On 19th December 2014, the Irish Court extended the order of 23rd October again until 26th January 2015. On the same day, at a hearing before me in the English Court of Protection, a further time limited order was made recognising and enforcing the Irish order made earlier that day. At a further hearing on 26th January, the Irish Court extended the order of 23rd October until 26th February when a full hearing of the HSE's application took place. At that hearing, PA was represented by a guardian ad litem, as he had been in the earlier proceedings.
- It had been anticipated that PA would return to Ireland for the contested hearing on 26th February, although in the event he was not clinically fit to attend and therefore gave evidence by video link. At that hearing, the Court also received evidence from various clinicians treating PA in Ireland and England. Senior Counsel on his behalf argued that, on the evidence, PA had capacity to make material decisions as to his residence and care, including his medical treatment; that, if it was correct that he had bipolar affective disorder so as to warrant detention under the Irish Mental Health Act, he should be detained under that Act and not at St Andrew's; that on the medical evidence his condition did not warrant such detention; that the real reason why his detention was sought was because of his personality disorder; that Irish legislation had prohibited detention in such circumstances and that to use the inherent jurisdiction for such purposes would violate the doctrine of the separation of powers; and, in the alternative, if the inherent jurisdiction was available, it should only be used in exceptional circumstances and this case did not warrant such action.
- In her judgment dated 5th March 2015, however, Ms Justice O'Hanlon rejected these submissions made on PA's behalf. She found that PA was, and had been at all material times, habitually resident in Ireland. While she accepted that PA had capacity to make decisions as to his residence, she found that he lacked the capacity to make material decisions as to his medical treatment and therapy, and specifically to weigh up the "therapeutic pros and cons" of staying at St Andrew's versus therapy in an Irish treatment centre. She concluded that his best interests and personal rights under the Irish Constitution were endangered so that the intervention of the Court was necessitated. She therefore found that PA required in his own interests to be detained and treated at St Andrew's for the purposes of overseeing an orderly transition to an appropriate placement in Ireland; recommended the formation of a committee of doctors to oversee his transition to Ireland and to advise how and when such transition is to be effected; provided that PA's guardian ad litem in the Irish proceedings should remain involved in the case to assist PA in the transition back to Ireland; and held that the case should be reviewed by the Irish High Court at least every month to assist PA's transition back to that country. Following that judgment, O'Hanlon J made an order in similar terms to that made on 23rd October 2014, reciting inter alia (a) that PA remained habitually resident in Ireland; (b) that he continued to suffer from a serious personality disorder accompanied by bipolarism which continued to require treatment at St Andrew's; (c) that, owing to an impairment of his personal faculties, he cannot protect his own interests; (d) that on the evidence of his treating clinician at St Andrew's he met the criteria for detention under s. 3 of the English MHA 1983; (e) that his best interests and personal rights under the Irish Constitution were endangered and the intervention of the Court was necessary; (f) that his illness is of a kind and degree that continued to require a period of compulsory confinement for the purposes of alleviating his symptoms through therapeutic means in order to facilitate his transition back to Ireland; (g) that there was no suitable facility available within the jurisdiction of the Irish Court and (h) that St Andrew's was a suitable institution for the purposes of providing treatment to him. The Court therefore authorised the HSE to continue to place PA at St Andrew's until further order "for the purpose of receiving treatment there, together with any welfare and therapeutic services, for the purpose of ensuring an orderly transition to an appropriate placement in Ireland", and adjourned the case to a further hearing on 26th March. Subsequently, that order has been renewed in further orders, the current order being dated 7th May which provides that the case be listed for review on 2nd July. It is accordingly this order dated 7th May that the HSE now invites this Court to recognise and enforced pursuant to Schedule 3 of the Mental Capacity Act 2005.
Summary of Background: (2) PB
- PB was born on 25 January 1997. She currently has a diagnosis of mixed disorder of conduct and emotions, and now she is an adult is thought likely to be diagnosable with a personality disorder. She first came into contact with mental health services in Ireland in December 2011 when she was admitted to hospital following a suicide attempt. There is evidence that she may have been abused by a member of her family. PB has been cared for in psychiatric institutions since 2012 and has required at least 1:1 supervision for much of that time, to prevent her from self-harming or attempting suicide. Between 15 October 2012 and 13 November 2013, she was detained in hospital in Ireland pursuant to Irish mental health legislation. As in the case of PA, it was subsequently decided that she should be placed at St Andrew's in Northampton and orders of the Irish High Court authorising KW's placement at St Andrew's were made, and subsequently registered and recognised in this jurisdiction pursuant to Brussels IIR.
- In November 2014, PB returned to Ireland for a visit, as part of a planned attempt to enable her to return home. Unfortunately, when she returned to St Andrew's after that visit, there was a deterioration in her mental state which she said was triggered by her not being happy at home, and she made a number of serious attempts to take her life. The clinicians responsible for PB's treatment at St Andrew's considered that, on reaching 18, she should be transferred to a low secure unit which they manage. It was anticipated that she would continue to require treatment for at least another six months. As in PA's case, it was the view of the clinicians that no similar facility was available in Ireland.
- In January 2015, the HSE applied to the Irish High Court for orders permitting PB to be detained at St Andrew's after her 18th birthday. At a hearing on 12 January 2015, the Court expressed the preliminary view that PB lacked capacity to make decisions about her care and treatment. At a hearing on 22 January 2015, at which PB was represented through her Guardian, Ms Justice O'Hanlon made a detailed order which included inter alia declarations that PB is habitually resident in Ireland and that she needed specialised care, therapeutic and welfare services, the effective provision of which require that she be detained temporarily in a secure place, and which were not currently available in that jurisdiction, and authorised PB's continued detention at St Andrew's Healthcare following her 18th birthday for a period of three weeks, during which a full assessment of her capacity to make decisions about her care and treatment would be obtained. The Court adjourned the matter to a further hearing on 12th February. At an urgent hearing before Roderic Wood J in the English Court of Protection on 23rd January 2015, an interim order was made recognising and enforcing the interim order made in the Irish Court the previous day.
- On 25th January, PB attained the age of 18.
- On 6th February, in this Court Russell J made an order extending the interim order of Roderic Wood J. Further interim orders were made in the Irish Court by Ms Justice O'Hanlon on 12th and 24th February. A psychiatrist expressed the opinion in evidence that PB had capacity to conduct litigation (and as a result before this Court has instructed her lawyers directly on the same basis as PA). On that latter day, a full hearing took place, after which the learned judge reserved judgment. Thus at the date of the hearing before me on 6th March, the judgment from the Irish Court was outstanding, and furthermore at that point there had been no determination by the Irish Court on the issue of capacity. In the event, the judgment was delivered on 12th March. O'Hanlon J held inter alia that PB failed to appreciate the seriousness of her condition; that she lacked the capacity to make material decisions as regards her medical treatment and therapy; that she is and remains habitually resident in Ireland; that her best interests required that she returned to Ireland in accordance with her wishes; that the transition should be managed in a safe and secure way, within a three-month time span or earlier if the medical teams so agreed, and to that end she should receive such therapeutic treatment and medication as advised by her treating psychiatrist at St Andrew's; and that, upon her return, she should be detained under the inherent jurisdiction of the Irish Court as a psychiatric patient in a hospital in County Clare. The terms of that judgment were incorporated into an order dated 30th March. At the hearing on 26th March, O'Hanlon J ordered that PB be returned to Ireland "as soon as possible having regard to medical advice and not later than 12th June 2015", that upon her return she should be detained as a psychiatric patient in a hospital in County Clare and pending her return she should be detained at St Andrew's. The matter was adjourned again until 30th April. I understand that the HSE, PB and PB's guardian ad litem have filed notices of appeal against that order; that an application by the HSE for a stay of the order was refused on 14th May, but that a further application for a stay has now been made on different grounds. Pending appeal, the order made following the judgment on 12th March, perfected on 30th March, remains in force. It is this order that the HSE now invites this Court to recognise and enforce pursuant to Schedule 3 of the Mental Capacity Act 2005.
Summary of Background: (3) PC
- PC was born in 1994 and is now aged twenty. He has a past history of ADHD, substance misuse, difficulties with language comprehension, conduct disorders and aggressive unpredictable behaviour putting himself and others at risk. On occasions, he has also exhibited sexualised behaviour in public and in private. Until the end of 2012, he was a voluntary patient at a hospital in Dublin but his treating psychiatrist concluded that his demands were such that a transfer to St Andrew's hospital in Northampton was necessary. On 21st December 2012, when PC was just 18 years old, the Irish High Court (Birmingham J) declared and ordered under its inherent jurisdiction that (a) he lacked the capacity to make proper and reasoned judgments as to his welfare; (b) he was a habitual resident of the Republic of Ireland; (c) he was in need of special care therapeutic and welfare services, the effective provision of which required that he be detained on an interlocutory basis in a secure place and which were not currently available in Ireland; (d) that the HSE be permitted to remove PC from Ireland and place him in the care of the director of St Andrew's Northampton; and (e) that the director of St Andrew's be permitted to detain PC at the unit pending further order. The learned judge made further orders to facilitate the transition of PC to St Andrew's. At a hearing on the same day in the English Court, I made an order declaring that the protective measures made under the Irish order that day be recognised and enforceable in this jurisdiction.
- For the next two years, PC remained resident at a medium secure unit at St Andrew's in Northampton. By the end of 2014, however, it was concluded that he had made sufficient progress to be moved into a low secure unit. The facilities at Northampton, however, did not include a suitable unit and the decision was therefore taken to apply to the Irish Court for an order permitting his transfer to a low secure unit run by St Andrew's in Birmingham. On 3rd February 2015, therefore, Abbott J in the Irish High Court made an order repeating the declarations as to capacity etc made by Birmingham J in 2012, and further ordering that the HSE be permitted to transfer him to the unit in Birmingham and detain him there temporarily pending further order of the Court. The order was adjourned until 11th May. At a hearing before me on 18th February, I appointed PC's guardian ad litem from the Irish proceedings to act as litigation friend in the English proceedings. I recognised Abbott J's order and declared it enforceable. Knowing, however, of the issues that had arisen in the cases of PA and PB, I directed that PC's case be listed for review at the hearing on 6th March, and gave ancillary directions including for service of the papers upon the Official Solicitor with a request that he consider whether he wished to appear as Advocate to the Court in the proceedings in respect of PC as well as in the other cases. Subsequently, PC was transferred to the facility in Birmingham on 23rd February, and the Official Solicitor duly consented to act as Advocate to the Court in relation to PC's case, as well as the other two cases already listed. At a subsequent hearing on 11th May, the Irish Court adjourned the matter again, and provided that the order of 3rd February should remain in force until 23rd June. In PC's case, therefore, the order of 3rd February remains in force but, having listed it for review at the hearing on 6th March, I have the power to review my decision to recognise and enforce that order having heard full argument on the wider issues.
- At the hearing, I was shown a letter from PC's treating psychiatrist to the effect that it was now considered that he had litigation capacity. On behalf of the HSE, Mr Setright indicated that the HSE would renew an earlier offer to pay for him to receive legal advice directly from a solicitor. PC indicated that he would prefer that his Irish guardian ad litem continues to act as his litigation friend, or perhaps in some other capacity as his advocate. In the light of the expert opinion as to PC's capacity, however, I made an order at the conclusion of the hearing on 6th March discharging the Irish guardian ad litem as PC's litigation friend. At present, PC does not wish this Court to review his circumstances so it is unnecessary at this stage to consider further the issue of the guardian ad litem's status within these proceedings.
- A review of the relevant statutory and regulatory provisions in this case must start with the Hague Convention on the International Protection of Adults 2000 ["the 2000 Convention"].
- The preamble to the Convention provides that:
"The State signatory to the present Convention,
considering the need to provide for the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests,
wishing to avoid conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of adults,
recalling the importance of international co-operation for the protection of adults,
affirming that the interests of the adult in respect for his or her dignity and autonomy are to be primary considerations,
have agreed on the following propositions."
- Article 1 of the Convention provides:
"(1) This Convention applies to the protection in International situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests.
(2) Its objects are (a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the adult; (b) to determine which law is to be applied by such authorities in exercising their jurisdiction; (c) to determine the law applicable to representation of the adult; (d) to provide for the recognition and enforcement of such measures of protection in all Contracting States; (e) to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention."
- Article 3 provides:
"The measures referred to in Article 1 may deal in particular with (a) the determination of incapacity and the institution of a protective regime; (b) the placing of the adult under the protection of a judicial or administrative authority; (c) guardianship, curatorship and analogist institutions; (d) the designation and functions of any person or body having charge of the adult's person or property, representing or assisting the adult; (e) the placement of the adult in an establishment or other place where protection can be provided; (f) the administration, conservation or disposal of the adult's property; (g) the authorisation of a specific intervention for the protection of the person or property of the adult;"
Article 3 proceeds to identify a number of matters to which the Convention does not apply. It is unnecessary to consider these provisions in this judgment.
- Subsequent chapters of the Convention contain provisions as to jurisdiction, applicable law, recognition and enforcement, and international co-operation. Article 33, for example, makes provision for consultation between Central Authorities of other competent authorities prior to placement in another country, and stipulates that the decision on placement may not be made in the requesting state if the Central Authority or other competent authority of the requested state indicates its opposition within a reasonable time. Article 57 makes provision as to the methods by which each Contracting State may ratify the Convention.
- The Convention has been ratified by the United Kingdom in relation to Scotland alone. As Sir James Munby P observed in Re O (Court of Protection: Jurisdiction)  EWHC 3932 (COP) at paragraph 7, in England and Wales the Convention is given effect, but only to the extent thereby specified, by certain provisions of the Mental Capacity Act 2005. It is therefore primarily to that Act, rather than the Convention itself, that the Court must have regard.
- Section 63 of the Mental Capacity Act 2005, headed "International Protection of Adults", reads as follows:
"Schedule 3 (a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at The Hague on 13th January 2000 (insofar as this Act does not otherwise do so) and (b) makes related provision as to the private international law of England and Wales."
- Schedule 3 to the Act is headed "International Protection of Adults". The whole of the Schedule should be read into this judgment, but the following paragraphs are particularly relevant to the present applications.
- Part 1, containing paragraphs 1 to 6, is headed "Preliminary". Paragraph 2 (2) provides:
"'Convention country' means a country in which the Convention is in force."
Paragraph 2 (4) provides:
"An expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention."
Paragraph 4, headed "Adults with incapacity", provides:
"(1) 'Adult' means (subject to sub-paragraph (2) a person who
(a) as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests, and
(b) has reached 16.
(2) But 'adult' does not include a child to whom either of the following applies –
(a) The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children that was signed at The Hague on 19 October 1996;
(b) Council Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility."
Paragraph 5 of the Schedule, headed 'Protective Measures', reads:
"(1) 'Protective measure' means a measure directed to the protection of the person or property of an adult; and it may deal in particular with any of the following – "
(a) the determination of incapacity and the institution of a protective regime,
(b) placing the adult under the protection of an appropriate authority,
(c) guardianship, curatorship or any corresponding system,
(d) the designation and functions of a person having charge of the adult's person or property, or representing or otherwise helping him,
(e) placing the adult in a place where protection can be provided,
(f) administering, conserving or disposing of the adult's property,
(g) authorising a specific intervention for the protection of the person or property of the adult
(2) Where a measure of like effect to a protective measure has been taken in relation to a person before he reaches 16, this Schedule applies to the measure in so far as it has effect in relation to him once he has reached 16".
- Part 2, containing paragraphs 7 to 9, is headed "Jurisdiction of Competent Authority". Paragraph 7 provides:
"(1) The Court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to –
(a) an adult habitually resident in England and Wales,
(b) an adult's property in England and Wales;
(c) an adult present in England and Wales or who has property there, if the matter is urgent, or
(d) an adult present in England and Wales, if a protective measure which is temporary and limited in its effect to England and Wales is proposed in relation to him.
(2) An adult present in England and Wales is to be treated for the purposes of this paragraph as habitually resident there if
(a) his habitual residence cannot be ascertained,
(b) he is a refugee, or
(c) he has been displaced as a result of disturbance in the country of his habitual residence"
- In passing, I record that in oral argument some brief submissions were made as to the meaning and purpose of paragraph 7. Time did not permit a lengthy analysis during the hearing. Having given this matter further consideration, I conclude that this paragraph contains rules as to the Court's jurisdiction to exercise its functions under the Act and the terms of the paragraph (and the subsequent paragraphs 8 and 9, which it is unnecessary to recite) are designed to reflect the provisions as to jurisdiction set out in Chapter 2 of the Convention (see Dicey, Morris and Collins "The Conflict of Laws" 15th edition paragraph 21-006.) Paragraph 7 is not intended to define the jurisdiction of the Court in respect of its powers and obligations in Part 4 of the Schedule (considered below) as to recognition and enforcement of protective measures taken under the law of another country.
- Part 3, containing paragraphs 12 to 18, is headed "Applicable law". Paragraph 11 provides:
"In exercising jurisdiction under this Schedule, the Court may, if it thinks that the matter has a substantial connection with a country other than England and Wales, apply the law of that country".
Paragraph 12 provides:
"Where a protective measure is taken in one country but implemented in another, the conditions of implementation are governed by the law of the other country."
Paragraph 17 provides:
"Where the Court is entitled to exercise jurisdiction under the Schedule, the mandatory provisions of the law of England and Wales apply, regardless of any system of law which would otherwise apply in relation to the matter."
Paragraph 18 provides:
"Nothing in this Part of this Schedule requires or enables the application in England and Wales of a provision of the law of another country if its application would be manifestly contrary to public policy".
- Part 4 of the Schedule (containing paragraphs 19-25 inc.) is headed "Recognition and Enforcement". Under the heading "Recognition", paragraph 19 provides:
"(1) A protective measure taken in relation to an adult under the law of a country other than England and Wales is to be recognised in England and Wales if it was taken on the ground that the adult is habitually resident in the other country.
(2) A protective measure taken in relation to an adult under the law of a Convention country other than England and Wales is to be recognised in England and Wales if it was taken on a ground mentioned in Chapter 2 (jurisdiction).
(3) But the Court may disapply this paragraph in relation to a measure if it thinks that –
(a) the case in which the measure was taken was not urgent,
(b) the adult was not given an opportunity to be heard, and
(c) The omission amounted to a breach of natural justice.
(4) It may also disapply this paragraph in relation to a measure if it thinks that
(a) recognition of the measure would be manifestly contrary to public policy
(b) The measure would be inconsistent with a mandatory provision of the law of England and Wales, or
(c) The measure is inconsistent with one subsequently taken, or recognised, in England and Wales in relation to the adult
(5) And the Court may disapply this paragraph in relation to a measure taken under the law of a Convention country in a matter to which Article 33 applies, if the Court thinks that that Article has not been complied with in connection with that matter. "
Paragraph 20 provides:
"(1) An interested person may apply to the Court for a declaration as to whether a protective measure taken under the law of a country other than England and Wales is to be recognised in England and Wales.
(2) No permission is required for an application to the Court under this paragraph."
- Paragraph 21 provides:
"For the purposes of paragraphs 19 and 20, any finding of fact relied on when the measure was taken is conclusive."
- Under the heading "Enforcement", paragraph 22 provides:
"22 (1) An interested person may apply to the Court for a declaration as to whether a protective measure taken under the law of, and enforceable in, a country other than England and Wales is enforceable, or to be registered, in England and Wales in accordance with Court of Protection Rules.
(2) a Court must make the declaration if –
a. the measure comes within sub-paragraph (1) or (2) of paragraph 19, and
b. the paragraph is not disapplied in relation to it as a result of sub-paragraph (3), (4) or (5).
(3) A measure to which a declaration under this paragraph relates is enforceable in England and Wales as if it were a measure of like effect taken by the Court."
- Paragraph 24 of the Schedule provides:
"The Court may not review the merits of a measure taken outside England and Wales except to establish whether the measure complies with this Schedule in so far as it is, as a result of this Schedule, required to do so."
- Part 5, headed "Co-operation", contains a number of provisions which are not relevant to these applications. Finally Part 6, headed "General", contains various provisions, of which it is only necessary to mention paragraph 35 which identifies a number of provisions in the Schedule which have effect only if the Convention is in force in accordance with Article 57. These provisions include paragraph 19(2) and (5).
Convention and non-Convention countries
- On behalf of the HSE, Mr Setright QC, Mr Ruck Keene and Ms Butler-Cole stress that Schedule 3 implements, as a matter of domestic law, those obligations in respect of the recognition, enforcement and implementation of "protective measures" imposed by a foreign Court regardless of whether that Court is located in a Convention country. They submit that Parliament must be taken to have accepted that there will be circumstances in which the Court of Protection will be required to recognise and enforce protective measures taken by states which are not parties to the Convention but did not identify any additional steps that the Court is required to take in relation to such measures. They submit that the Court must therefore take care when considering any application for recognition and enforcement of a protective measure emanating from a non-Convention state so as to ensure that the construction of Schedule 3 which it adopts remains consistent with that required so as to continue to give effect to the Convention. It would not be permissible to identify one rule for 2000 Convention states and another for non-Convention states.
- In response, Mr Rees on behalf of the Official Solicitor submits that Schedule 3 distinguishes carefully between Convention and non-Convention states and in some cases imposes different rules. Mr Rees submits that there is a clear distinction to be drawn between cases where sovereign states have both signed up to a regulation or convention based upon mutual recognition of agreed and accepted principles, and under which both enter into mutual and reciprocal obligations, and cases where the United Kingdom has unilaterally taken it upon itself to recognise orders from any foreign state. He submits that the Court of Protection should therefore take a more cautious approach generally to the recognition and enforcement of protective measures from states which have not ratified the Convention. Such an approach is, he submits, not incompatible with the UK's obligations under the Convention. Whilst the overall framework of Schedule 3 applies in both Convention and non-Convention cases, issues of public policy may lead the Court to reach different conclusions in the two types of cases, even if the underlying factual matrix in each case is superficially similar.
- There is, for practical purposes, little to choose between these two positions. I accept, however, the submission made by Mr Setright QC, Mr Ruck Keene and Ms Butler-Cole that Schedule 3 implements, as a matter of domestic law, obligations in respect of the recognition, enforcement and implementation of "protective measures" imposed by a foreign Court regardless of whether that Court is located in a Convention country, and that it would not be permissible to apply one rule for 2000 Convention states and another for non-Convention states. I do not accept that the Courts of England and Wales should automatically adopt a more cautious approach when asked to recognise and enforce an order of a non-Convention state. Each case will turn on its own facts, to which this Court must apply the provisions of the Schedule, in particular the provisions as to recognition in paragraph 19 including the grounds on which recognition may be refused. Plainly the Courts of England and Wales will have proper regard to the general principles of comity in all cases, although a greater degree of caution may be required when considering orders made by certain countries. Given the close similarities between the legal systems of England and Wales and the Republic of Ireland, however, I anticipate that the circumstances in which the Court will find cause to exercise its discretion to refuse to recognise protective measures in orders of the Irish Courts will be rare, notwithstanding the fact that Ireland (like England and Wales) has yet to ratify the Convention.
- The Official Solicitor identifies six questions that he says need to be answered before this Court can recognise and enforce the orders of the Irish Court. He contends that these questions are likely to arise in any similar case where an application is made for recognition and enforcement of a foreign Court order under Schedule 3.
(1) Are PA, PB and PC "adults" within the meaning of Schedule 3 paragraph 4?
(2) Are the provisions of the Irish orders "protective measures" within the meaning of Schedule 3 paragraph 5?
(3) Were the Irish orders made on the grounds that PA and/or PB and/or PC is habitually resident in Ireland?
(4) Were the procedural safeguards in Schedule 3 paragraph 19(3) met?
(5) Would recognition of the Irish orders be manifestly contrary to public policy?
(6) Are the Irish orders inconsistent with a mandatory provision of English law?
Later in his submissions, Mr Rees identified what is really a seventh question namely how the orders, if recognised, are to be implemented.
- There is an important difference between the persons who fall within the general jurisdiction of the Court of Protection under the MCA and those in respect of whom protective measures taken by a foreign Court may be recognised and enforced by the Court. The Court's general jurisdiction exists in respect of persons who lack capacity within the meaning of section 2(1) of the Act, which provides that:
"for the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain".
As stated above, however, Schedule 3 applies to an "adult" defined in paragraph 4(1) as a person over 16 who, as a result of an impairment or insufficiency of his personal faculties, cannot protect his interests.
- The definition of an adult under the Schedule is almost identical to the person who is protected under the 2000 Convention, being a person aged over 18 who, by reason of an impairment or insufficiency of their personal faculties, is not in a position to protect their interests. In the Explanatory Report he prepared to accompany the Convention, Professor Paul Lagarde observed at paragraph 9 - 10:
"Paragraph 1 [of Article 1 of the Convention] defines the adults to which the Convention applies. These are naturally those who need protection but, to make this need quite clear, the Commission purposefully avoided in this paragraph using juridical terms, such as "incapable party", which have different meanings depending on the law being considered. It was therefore judged preferable to keep to a factual description of the adult in need of protection. The text contains two factual elements. The first is that of an "impairment or insufficiency of [the] personal faculties" of the adult… The [second is that the] [insufficiency or impairment of the personal faculties of the adult must be such that he or she is not "in a position to protect [his or her] interests". The second element in the definition must be understood broadly. "
- As Mr Setright observes, it is important to note that the Convention very deliberately did not use the term "incapacity" in the context of the definition of individuals to be covered by the protection afforded within the Convention. On behalf of the Official Solicitor, Mr Rees submits that a finding that a person has been held to lack capacity under the law of one country does not mean that he should be held to lack capacity under the law of another because a finding as to capacity is not simply a finding of fact and thus is outwith Schedule 3 paragraph 21. The Explanatory Report makes it clear, however, that the scheme of the Convention, reflected in the Schedule, is to focus on the factual description of the adult rather than any legal test as to capacity.
- In each case, the Court must look at the order and judgment of the foreign Court – and if it thinks it necessary to do so, and insofar as it is permissible to do so under paragraph 24, the evidence before the foreign Court – to establish whether the foreign Court has made a finding which is binding or, if not, whether the individual comes within the meaning of "adult" under Schedule 3 paragraph 4(1). There may well be cases where the Court of Protection is not satisfied that the subject of the proceedings meets the definition of "adult" in that sub-paragraph.
- In my judgment, however, in each of these three cases the declaration made by the Irish Court, and the evidence put before that Court, provides sufficient grounds for this Court to conclude that the individual is a person who, by reason of an impairment or insufficiency of their personal faculties, was not in the position to protect their interests. In PA's case, the order of the Irish Court was expressly made on the basis of a declaration that the subject was a person who, by reason of an impairment or insufficiency of their personal faculties, was not in the position to protect their interests. This is therefore a finding expressed in the terms almost identical to those of the Convention and Schedule 3 to the MCA. In the cases of PB and PC, the Irish Court has declared, on the basis of expert psychiatric evidence, that each lacks the capacity to make "material decisions" (in the case of PB) or "an informed decision" (in the case of PC) as regards their medical treatment. In each case, this amounts to a factual finding that each was a person who, by reason of an impairment or insufficiency of their personal faculties, was not in the position to protect their interests. Each of these findings, relied on by the Irish Courts when taking the protective measures, is binding on this Court by virtue of paragraph 21 of the Schedule. In this case, even if the finding was not binding, I would conclude, on the basis of all the information before the Court, that each comes within the scope of paragraph 4(1).
- On this point, there is no issue in this case. In each case, the effect of the Irish order was to place the person concerned in St Andrew's, being a place where protection could be provided. The order directing the placement at St Andrew's and the ancillary provisions facilitating the placement, are therefore "protective measures" within the meaning of Schedule 3 paragraph 5(1)(e).
- As set out above, Schedule 3 paragraph 19(1) provides that "a protective measure taken in relation to an adult under the law of a country other than England and Wales is to be recognised in England and Wales if it was taken on the ground that the adult is habitually resident in the other country." On behalf of the Official Solicitor, Mr Rees submitted in his written argument in respect of this provision that it appears to direct the attention of the Court of Protection, not to an objective view of the habitual residence of the person in question, but to the subjective basis upon which the foreign Court acted and that, if this is the correct test, this Court will be bound by the Irish Court's declaration in each case that the individual is habitually resident in Ireland.
- On behalf of PA, however, Ms Curtis invites this Court to look behind the decision of the Irish Court and carry out its own assessments as to habitual residence. That assessment must be carried out as at the date of the hearing, as confirmed by Sir James Munby P in Re O (Court of Protection: Jurisdiction)  EWHC 3932 (COP). Ms Curtis submits that, for paragraph 19 to serve a legal purpose, this Court must be permitted to at least consider the situation as it appears on the face of the papers. Ms Curtis submits that the key fact is that PA has been physically present in England since October 2011 and that the Irish Court's declaration does not therefore sit easily with the factual position as it is known to be at the date of hearing before me in March 2015. Ms Curtis accepts that PA wishes to return to Ireland but submits that the fact that he does not wish to be in England is not inconsistent with his being habitually resident here, nor has it prevented him, for example, meeting the test for habitual residence required for the purpose of receiving means-tested benefits in this country which he has apparently been claiming. Ms Curtis submits that the factual matrix of PA having been physically present in England for more than three years in a manner which is neither temporary nor intermittent is highly persuasive of the fact that he is habitually resident in this country. She argues that this should prompt examination of whether paragraph 21 of Schedule 3 can compel this Court to accept that PA is habitually resident in Ireland simply on the basis that the Irish Court has declared him so to be. She contends that paragraph 21 "should not operate as a blindfold to the Court". In oral argument, she asked whether it could be right that this Court, tasked with the responsibility of recognising and enforcing an order which has the consequence of a deprivation of liberty, should be barred from looking at the facts relied on in the other jurisdiction in determining habitual residence. As I understood his oral submissions, Mr Rees seemed to give support to this proposition, notwithstanding what was said in his written document. He suggested that, even if the foreign Court has made an order on the basis that the individual was habitually resident there, it would not stop the English Court in the exercise of its jurisdiction concluding that the individual was habitually resident here.
- Ms Curtis drew attention to the extensive analysis of the test for habitual residence under the MCA in An English Local Authority v SW and Others  EWCOP 43 in which Moylan J considered the line of authorities in children's cases both in courts of this country and the CJEU, concerning the meaning of "habitual residence" when determining jurisdiction under Brussels IIR – in particular, Proceedings brought by A (Case C-523/07)  Fam 42, Mercredi v Chaffe (Case C-497/10) PPU)  Fam 22 and A v A (Children: Habitual Residence) Reunite International Child Abduction Centre intervening)  UKSC60. The key principles derived from these authorities, as summarised by Baroness Hale of Richmond in A v A, at paragraph 54, are that (1) habitual residence is a question of fact and not a legal concept; (2) the test adopted by the CJEU is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned; and (3) the essential factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce. In the SW case, Moylan J concluded, at paragraph 64, that "the definition of 'habitual residence' under the MCA should be the same as applied in other family law instruments, including Brussels II Revised."
- Ms Curtis submits that, applying the test summarised by Baroness Hale in A v A and, given that PA has been in this country since 2011, this Court should conclude that he is habitually resident here and therefore should decline to recognise and enforce the orders of the Irish Court. Mr Rees on behalf of the Official Solicitor observes that, if it is indeed open to this Court to take its own view on the questions of habitual residence, then the Official Solicitor would concur that, given the length of time that he has now been present in England and Wales, the question of PA's habitual residence is "not clear cut".
- In reply, Mr Setright. Mr Ruck Keene and Ms Butler-Cole submit, first, that having regard to the scheme of the 2000 Convention and the terms of section 63 and Schedule 3 of the 2005 Act, there is a compelling case for concluding that this Court should be bound by the findings of the Irish Court as to habitual residence, reached after a fully contested hearing. In the alternative, they contend that, on the facts, Ireland is indeed the place which "reflects some degree of integration by PA in a social and family environment". It is the country to which PA intends to return as soon as he is able to do so.
Discussion and conclusion on habitual residence
- The scheme of the Convention which underpins Schedule 3 is to facilitate the recognition and enforcement of protective measures taken by foreign Courts save in the circumstances set out in paragraphs 19(3) and (4). The measure "is to be recognised" if taken on the grounds that the individual was habitually resident in the country where the order containing the measure was made. The grounds on which a measure may be challenged may be procedural (paragraph 19(3)) or substantive (paragraph 19 (4). By reason of paragraph 21, however, which as stated above provides that for the purposes of paragraphs 19 and 20 any finding of fact relied on when the measure was taken is conclusive, there is no power to challenge the finding made in the foreign Court that the individual is habitually resident in that country. Accordingly, a finding of a foreign Court that the individual concerned was habitually resident in that country cannot be challenged in any process to recognise or enforce a measure in this country, although the process by which the measure was ordered may be challenged (for example, if the individual was not given an opportunity to be heard) and the measure itself may be challenged (for example, if inconsistent with a mandatory provision of law of this country). I therefore conclude that the finding of the Irish Court as to the habitual residence of PA, PB and PC cannot be challenged in this Court.
- In any event, I conclude that, in each of these cases, the findings made by the Irish Court as recorded in the relevant orders were in line with the clear authority of the CJEU and the Courts of this jurisdiction. In each case, Ireland remains the place of integration in a social and family environment. PA, PB and PC are all in this country on a temporary basis for the purposes of treatment, each hoping to return to Ireland at the earliest opportunity, and their cases are subject to regular review by the Irish Court to determine whether the adult concerned should return or remain for the time being in this country.
- This point was put succinctly by counsel in the Irish Court – as it happens. Senior Counsel acting for PA, Mr Gerard Durcan SC – who submitted to O'Hanlon J at the hearing on 2nd March (as recorded at internal page 70 of the transcript) that
"the fact that all the time PA's stay in England is on foot of short term Irish High Court Orders always subject to review, always temporary, it seems to be simply, to use the expression of the Court, is not conducive to a finding there is a change in habitual residence. I just think somewhere in your judgment, Judge, you need to deal with this because the English Court will find it very helpful indeed to have a finding from the Irish Courts".
O'Hanlon J accepted this submission. Her finding as to habitual residence, and the corresponding findings in the other cases, are indeed helpful to, and, by virtue of Schedule 3 paragraph 21, binding on, this Court.
Schedule 3 Paragraph 19(3)
- Schedule 3 paragraph 19(3), quoted above, gives the Court a discretionary power to refuse to recognise a protective measure if certain procedural safeguards are not met. It is plain from the way in which Schedule 3 paragraph 19(3) is drafted that the Court only has a discretion to decline to recognise a foreign order if all three of the conditions in the subparagraph are satisfied. In other words, the Court only has a discretion to disapply a measure in a foreign order if it "thinks" that the case in which the measure was taken was not urgent and the adult was not given the opportunity to be heard and that omission amounted to a breach of natural justice. On behalf of PB, Ms Weereratne QC underlines the use of the word "thinks" in paragraph 19(3) – and, indeed, in paragraph 19(4) – and submits that by using this word Parliament has set the bar relatively low. For my part, however, I interpret the word "thinks" as meaning "concludes on a balance of probabilities" rather than any lower standard such as "has reasonable grounds for believing".
- Here, in all three cases, each individual – PA, PB and PC – was given an opportunity to be heard by the Irish Court, each being represented by a guardian ad litem and counsel instructed by the guardian. On behalf of the Official Solicitor, Mr Rees asks whether the provision of a guardian ad litem is sufficient in circumstances where the person in question is already subject to a placement in this country, and thus cannot travel to discuss his case or give evidence before the Court, a fortiori if there are language difficulties. He asks further whether the imposition of a guardian ad litem in the Irish proceedings was sufficient to give the individual in each case the necessary opportunity to be heard within those proceedings, given that there is no evidence before this Court as to the basis of proceedings on which a guardian ad litem is appointed for an adult in Ireland, or the role of such a guardian once appointed.
- No doubt, there may be cases in which the Court will wish to scrutinise carefully the extent to which the adult has been given the opportunity to be heard in proceedings in the foreign country. In this case, however, having read the documents filed in these proceedings emanating from the Irish Court, I see no grounds on which it could possibly be said that any of the three individuals was not given a full and proper opportunity to be heard in the Irish proceedings. The system in Ireland is very similar – indeed, in some ways almost identical – to that which is in operation in this country. Each adult was represented by a guardian ad litem and by Counsel. Furthermore, as Ms Curtis acknowledges, PA was given an opportunity to participate in the Irish case by video link. In all the circumstances, I am entirely satisfied that all three adults in these proceedings were given ample opportunity to be heard in the Irish proceedings.
- In those circumstances, the discretionary power available under paragraph 19(3) does not arise. Both Mr Rees on behalf of the Official Solicitor and Ms Curtis on behalf of PA draw attention to the fact that the circumstances in which the order was made in respect of PA on 5th/6th March 2015 could not be described as "urgent" given that he has been in England since 2011. Mr Rees makes a similar point in respect of PB, given the length of time in which her proceedings have been continuing. It may be right that neither case could be described as "urgent", but the fact that each was given the opportunity to be heard precludes the exercise of the discretionary power invested in this Court under paragraph 19(3). It is conceivable that circumstances may arise in another case in which the making of orders where no urgency exists could be open to challenge on public policy grounds under paragraph 19(4). It was not suggested, however, that those circumstances arise in this case.
- Mr Rees also raises a broader question concerning paragraph 19(3). He suggests that this Court may wish to consider in broader terms the adequacy of the opportunity that must be provided for the person to be heard in the following proceedings. The parameters of the argument before me, however, have not put me in a position to give general guidance. That must be for another day.
Schedule 3 paragraph 19 (4)
- As already stated, paragraph 19(4) of Schedule 3 gives the Court a further discretionary power to decline to recognise a measure in a foreign order in certain circumstances spelt out in the sub-paragraph. In contrast to sub-paragraph (3), these grounds upon which an application for recognition may be refused are separate rather than cumulative. Thus, the Court may refuse recognition if it thinks that recognition would be manifestly contrary to public policy or the measure would be inconsistent with a mandatory provision of the law of England and Wales or the measure is inconsistent with one subsequently taken or recognised, in England and Wales in relation to the adult.
- As no subsequent measure has been taken in this country in respect of any of the three adults in these proceedings, it is unnecessary to consider paragraph 19(4)(c) in this case. The two other grounds in subparagraph (4), however, have been the subject of extensive legal argument before me.
- At the outset, it should be noted, as observed by Ms Weereratne, that subparagraphs (4)(a) and (b) appear properly to be considered as two sides of the same coin. She reminds me of the comment by Mostyn J in Re M  EWHC 3590 (COP), at paragraph 5, in which he refers to having struggled
"to conceive of a measure which fell within sub-sub-paragraph (b) that was not contrary to public policy under sub-sub-paragraph (a)."
I agree with this observation. It seems to me that recognition of a measure that would be inconsistent with a mandatory provision of the law of England and Wales would, by definition, be manifestly contrary to public policy. In addition, however, it is argued that there are further grounds upon which recognition of the measure would be manifestly contrary to public policy over and above the extent to which it is inconsistent with a mandatory provision of the law of England and Wales. It therefore makes sense to consider the impact of sub-sub-paragraph (b) before sub-sub-paragraph (a).
Paragraph 19(4)(b) – submissions (1) ECHR
- When seeking to identify those mandatory provisions of the law of England and Wales which may be inconsistent with measures taken in orders such as have been made by the Irish Court in this case, the parties' attention has been focused, first, on the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), in particular Articles 5, 6 and 8, and, secondly, on other provisions in the Mental Capacity Act 2005.
- On behalf of the Official Solicitor, Mr Rees observed that s.6 of the Human Right Act 1998 and the ECHR are mandatory provisions of the law of England and Wales. To satisfy Article 5(1) of the ECHR, any measure purporting to deprive PA, PB or PC of their liberty must meet the criteria established by the authorities of the European Court, in particular those identified in Winterwerp v Netherlands (1979) 2 EHRR 387. In that decision, the European Court held that, except in emergencies, depriving the liberty of someone of unsound mind can only be lawful under Article 5(1)(e) if three minimal conditions are satisfied – (1) the authority responsible for the deprivation of liberty must establish through objective medical expertise that the person is of unsound mind; (2) it must be established that the mental disorder is a kind or degree warranting compulsory confinement; (3) the validity of continued confinement depends upon the persistence of mental disorder. Mr Rees submits that at present there is no basis upon which this Court could assess whether the measure satisfied those criteria. Although, in this case, the HSE has disclosed the evidence that was placed before the Irish Court, there is no fixed procedure in statute or the rules of Court to require such evidence to be filed. Furthermore, paragraph 21 of Schedule 3 effectively prevents any review of whether the circumstances meet those criteria. The Court of Protection in this country will have no way of ensuring that the reviews of the person's detention, which are an integral aspect of the regime required by Article 5(4), are in fact being carried out in the foreign jurisdiction, or that the person in question will be represented or supported through that process. The mere fact that the foreign order purports to provide for reviews would not be sufficient in any event. Even if a review by a foreign Court was potentially capable of satisfying the UK's obligations under ECHR, the Court of Protection would need to go behind the face of the order and enquire as to the real substance of any review procedures in order to be satisfied that the mandatory provisions of the law of England and Wales are being followed. Mr Rees submits that, in most cases, it would therefore follow that the protections afforded to the person in question by Article 5, as interpreted and supplemented by the European and domestic case law, are not met.
- The Official Solicitor submits that similar difficulties arise in respect of Articles 6 and 8. The lack of any provision within the Court of Protection Rules 2007 for cases under Schedule 3 means that there is no guarantee that persons who are the subject of such orders will be joined as parties to applications for recognition under the Schedule. The Official Solicitor submits that representation of the person who is the subject of such an order by a foreign guardian may raise issues as to whether the "demanding standards" required of a system of representation (as stipulated by Sir James Munby P in Re X and others (No 2)  EWCOP 37) are satisfied. Mr Rees further points out that, in so far as the Irish orders (in particular, the order in PB's case) purport to confer on the HSE and St Andrew's wide powers to consent to matters on behalf of the detained person and to provide medical and other treatment, the order deprives the individual of a substantial amount of personal autonomy across a range of matters and may, therefore, infringe rights under Article 8.
- In reply, on behalf of the HSE, Mr Setright, Mr Ruck Keene and Ms Butler-Cole submit that the Court of Protection is only obliged to undertake such limited examination as is necessary to satisfy itself that the relevant proceedings fulfil the guarantees in Articles 5, 6 and 8 of the ECHR: see Pellegrini v Italy (2002) 35 EHRR 2. They submit that the nature of that examination will be more limited where the state where the protective measure is taken is a signatory to the ECHR, the presumption in such cases being that those guarantees will have been provided by the Courts of that country: see by analogy Re E (A Child)  1 WLR 2670.
- In this context, counsel for the HSE further submit that, when considering obligations under two international instruments, the Court must strive to achieve a "combined and harmonious application". This submission is derived from the decision of the European Court of Human Rights in X v Latvia  1 FLR 1135, a case which concerns the inter-relation between the Hague Child Abduction Convention and ECHR, in which the Court stated, at paragraphs 93 and 94 that
"in the area of International child abduction, the obligations imposed by Article 8 [of ECHR] on the Contracting
States must be interpreted in the light of the requirements of the Hague Convention"
"[this] approach involves a combined and harmonious application of the international instruments, and in particular in instant cases of the European Convention and the Hague Convention, regard being had to its purpose and its impact on the protection of the rights of children and parents."
Mr Setright, Mr Ruck Keene and Ms Butler-Cole argue, by analogy, that this Court should therefore seek to interpret Schedule 3 in such a way as to enable the "combined and harmonious application" of the 2000 Convention and the ECHR, with due regard being had to the purposes of the 2000 Convention as set out in its preamble as quoted above.
- With these two principles in mind, counsel for the HSE further submit that this Court should adopt the following approach to applications relating to compulsory psychiatric placements under Schedule 3 to ensure a "combined and harmonious application" of paragraphs 19(4)(b) and 24 of Schedule 3 on the one hand and Section 6 of HRA 1998 and Articles 5,6 and 8 of the ECHR on the other.
- First, the Court should consider whether the Winterwerp criteria are satisfied. If the Court is not so satisfied, it is accepted that it would be difficult to see how it would properly make a declaration of recognition and enforceability in a way that was compatible with its obligations under the Human Rights Act and Article 5 ECHR. In the present cases, however, counsel for the HSE submit that the Winterwerp criteria are manifestly satisfied in all three cases.
- Secondly, the Court must consider whether the individual's right to challenge their detention under Article 5(4) is effective. Two requirements of that provision arise in the context of a person detained on the basis of unsoundness of mind, namely (1) the right to take proceedings to challenge the basis upon which they are detained and (2) the right to regular reviews of their detention. The Court should consider whether it is satisfied that, in recognising and declaring enforceable only protective measures, it is acting compatibly with both aspects of this right under Article 5(4). If, and to the extent that, the Court considers that it needs to look "upstream" to the foreign jurisdiction to satisfy itself whether the individual's rights under Article 5(4) are secured, the Court may properly do so. In the present cases, the decisions have been made by judges of the Irish High Court in proceedings in which the individuals have each been represented by Senior Counsel instructed by a guardian ad litem. Extensive safeguards have in fact been included in the relevant Irish orders to ensure that the positions of all three adults are looked at on a very regular basis by the Irish High Court. They point out that these reviews will be much more frequent than that currently proposed under the regime for reviewing deprivations of liberty in this country; cf Re X and Others (Deprivation of Liberty)  EWCOP 25. Mr Setright submits that it is difficult to envisage a process that is more compliant with Article 5. A study of the proceedings before the Irish Court reveals an extraordinarily thorough process of analysis of the human rights engaged.
- Thirdly, it is submitted that the effect of declaring enforceable a foreign protective measure is to "domesticate" that order as if it were a measure of like effect taken by the Court. This is, it is submitted, the effect of paragraph 22(3) of Schedule 3. Counsel for the HSE submits that for the purposes of Article 5, the English Court is "interjected" between the foreign order and the detention in this country. Mr Setright and his juniors submit that an individual detained on the basis of a "domesticated" foreign order would not therefore have to seek to challenge that detention in the foreign Court but could, instead, apply in the first instance to this Court. In this way, the English Court will retain the power to ensure compliance under Articles 5 and 6.
- Similarly, so far as Article 8 rights are concerned, counsel for the HSE submit that, on the basis of reasoning with the principles already cited, this Court is entitled to consider whether recognising and declaring a protective measure enforceable would be contrary to Article 8. Once again, however, they submit, in line with the decision in X v Latvia, that the Court of Protection must be careful to approach this question on the basis that it is necessary to ensure the "combined and harmonious application" of the ECHR and the purposes of the 2000 Convention as set out in its preamble and reflected in Schedule 3 to the 2005 Act. In this context, it will be relevant that the scheme of the 2000 Convention rests upon the foundation that substantive consideration of where the adult's Article 8 interests lie should be a matter for the authorities and Courts of that adult's state of habitual residence. They acknowledge, however, that a different approach may be called for where the requesting state is a signatory to the ECHR as opposed to cases where it is not.
Paragraph 19(4)(b) – submissions (2) MCA
- So far as the 2005 Act is concerned, Mr Rees, supported by Ms Weereratne and adopted by Ms Curtis, submits that measures such as those included in the orders in respect of PA and PB are, or maybe, inconsistent with three mandatory provisions of the Act, namely those contained in sections 2, 1(5) and 16A(1).
- Mr Rees accepts that Parliament did not intend the definition of "adult" in Schedule 3 to be confined to those who lacked capacity under section 2. He submits, however, that this should not prevent the Court taking a "robust attitude" where an application is made to recognise and enforce a foreign protective measure that purports to detain a person who in English law would treat as having capacity to take the relevant decisions for himself. Ms Weereratne concurs, warning that the Court could find itself in a very difficult position of having to recognise an order that patently could not be made by this Court under its general jurisdiction because it does not satisfy the s.2(1) test of capacity.
- A further provision in the MCA which may conflict with the measure made by a foreign country is Section 1(5) which includes, as a principle to be applied for the purposes of the Act:
"An act done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests."
It is suggested that this fundamental principle underpins the whole of the MCA, and to recognise and enforce an order for the detention of an incapacitated adult under the Act without being satisfied that this course was in his best interests would be inconsistent with a mandatory provision of English law.
- Thirdly, section 16A(1) provides that:
"If a person is ineligible to be deprived of liberty by this Act, the Court may not include in a welfare order provision which authorises the person to be deprived of his liberty."
Mr Rees and Ms Weereratne each contend that this is a mandatory provision of the law of England and Wales and this Court has a discretion not to recognise a measure in a foreign order which conflicts with this provision. Section 16A (4) (b) provides that a "welfare order" under section 16A(1) means an order under section 16 (2) (a). This led Mostyn J in Re M (supra) at paragraph 6 to observe:
"An order made by me under paragraph 19 of Schedule 3 is not a welfare order under section 16(2)(a). The whole point of section 16A is to ensure that Courts do not outflank the mandatory provisions of section 4A and Schedule A1 by making, in effect, deprivation of liberty orders under section 16(2)(a), but that is not connected at all to the free-standing power to recognise a foreign order of this nature under paragraph 19 of Schedule 3. "
Both Mr Rees and Ms Weereratne challenge Mostyn J's interpretation. Mr Rees submits that, in reaching his conclusion, the learned judge appears to have focussed on the procedural form rather than the substance of the foreign order. He suggests that it is the substance of the order that paragraph 19(4)(b) is directed at, and that what the Court should be doing is to ask itself whether the effect of recognition of substance of the foreign order would be contrary to a mandatory provision of English law.
- Ms Weereratne further relies on paragraph 22(3) of Schedule 3 which, as stated above, provides that "a measure to which a declaration under this paragraph relates is enforceable in England and Wales as if it were a measure of like effect taken by the Court". She submits that this provision requires the Court to consider the effect of the foreign order which, she submits, is in effect that of a welfare order under section 16(2)(a) if it makes provision for care and treatment on behalf of an incapacitated person. She submits that this is the true point of connection between paragraph 19 and section 16(2)(a) and that Mostyn J was wrong to hold otherwise. If there is a clear inconsistency between the measure to be enforced under principle of English law, the Court must consider the use of its discretionary powers or the implementation of the placement must be governed by the English law. Thus, for example, the detention and compulsory treatment of the mental disorder of an objecting patient in a secure psychiatric institution in England is governed by the MHA 1983. By virtue of 16A(1), and Schedule 1A, of the MCA, such a person is ineligible to be detained and treated under that Act. In those circumstances, Ms Weereratne submits that the recognition of a measure in the foreign order that authorised the detention of such a person would conflict with section 16A, and Schedule 1A, which are, in her submission, mandatory provisions of the law of England and Wales.
- In reply, counsel for the HSE submit that section 2 of the 2005 Act does not operate as a part of the recognition and enforcement of protective measures taken in respect of a person who is an "adult" within the meaning of Schedule 3 but would not be considered to lack the material decision making capacity for the purposes of section 2. They contend that Schedule 3 should be read as a "self contained unit" in order to give effect to the terms of the Convention. They draw attention to the Explanatory Report prepared by Professor Paul Lagarde to accompany the 2000 Convention and in particular his comment at paragraph 9 – 10 cited above.
- Further, counsel for the HSE submit that, although paragraph 4 of Schedule 3 is actually entitled "Adults with Incapacity", there was no suggestion in the wording of the paragraph itself that the definition of "adult" is thereby to be limited to a person lacking capacity for the purposes of the body of the Act as defined in section 2. In contrast, the Scottish statute, the Adults with Incapacity Act 2000, expressly limits the scope of Schedule 3 of that Act, which gives effect to the Convention in Scotland, to "adults who are incapable within the meaning of the  Act".
- So far as s.1(5) is concerned, Counsel for the HSE cite and rely on the observations of Hedley J in Re MN (Recognition as Enforcement of Foreign Protective Measures)  EWHC 1926 (Fam), at paragraph 31:
"In the end, I have concluded that a decision to recognise under paragraph 19(1) or to enforce under paragraph 22(2) is not a decision governed by the best interests of MN and that those paragraphs are not disapplied thereby by paragraph 19(4)(b) and section 1(5) of the Act. My reasons are really threefold. First, I do not think that a decision to recognise or enforce can properly be described as a decision "for and on behalf of NM". She is clearly affected by the decision but it is a decision in respect of an order and not a person. Secondly, this rather technical reason is justified as reflecting the policy of the Schedule and of Part 4, namely ensuring the persons who lack capacity have their best interests and their affairs dealt with in the country of habitual residence; to decide otherwise would be to defeat that purpose. Thirdly, best interests in the implementation of an order clearly are relevant and dealt with by paragraph 12 which otherwise would not really be necessary."
- So far as s.16A(1) is concerned, counsel for the HSE rely on Mostyn J's observations in Re M and invite the Court to accept that an order for recognition and enforcement of a foreign protective measure is not a welfare order as defined in s. 16A.
Paragraph 19(4)(a) - Submissions
- Moving on from consideration of the extent to which the measures in the Irish order are inconsistent with mandatory provisions of the law of England and Wales, so as to give the Court discretionary power to refuse recognition of the Irish orders under paragraph 19(4)(b), Mr Rees and Ms Weereratne submit that there are wider grounds for holding that recognition of the measure will be manifestly contrary to public policy, so as to give the Court discretionary power to refuse recognition of the Irish orders under paragraph 19(4)(b).
- Mr Rees acknowledges the close connection between the Courts of this jurisdiction and Ireland. He adds, however, that it is in important to bear in mind that the general principles raised by this application are not restricted to applications made to enforce orders of what he describes as "courts of friendly states from a common law tradition such as Ireland", or other countries which are signatories to the ECHR or which have signed up to the common set of principles set out in the preamble to the 2000 Convention. Schedule 3 paragraph 19 operates beyond the scope of the 2000 Convention, placing a qualified obligation on the Court of Protection to recognise and enforce orders made by a foreign court irrespective of whether that foreign country has entered into a mutual or reciprocal obligation to recognise orders of this Court, or has signed up to the principles outlined in the preamble to the Convention. As Mostyn J observed in Re M (paragraph 5):
"In relation to the question of public policy, the reason for the inclusion of that provision is obvious, because this country is obviously not going to enforce oppressive or tyrannical orders for a detention which amounts to a deprivation of liberty at the behest of a foreign court. It is a sad fact that in the past political systems have used psychiatric institutions to apply their ideology….were any kind of protective measures to be stained by any kind of ideology of that nature, then I have no doubt that this Court would refuse to recognise it as being contrary to public policy. "
Mr Rees describes that as "an entirely proper aspiration" but observes that the practical difficulty imposed for this Court is how it is to decide which orders are oppressive and tyrannical. He acknowledges that Schedule 3 paragraph 24 permits a limited review by this Court of the merits of a measure in so far as it is necessary to do so to establish whether it complies with the Schedule but contends that this simply gives rise to further uncertainty, for example as to whether the Court is permitted to admit evidence of the process by which the foreign protective measures were made, or general evidence relating to the legal system of the state that made the order. He asks, rhetorically, that if such evidence is not admitted, how is the Court of Protection to distinguish between an order for detention that is "oppressive and tyrannical" and one that is not?
- Mr Rees submits that, faced with these difficulties, it is open to the Court to take the broader view that it is contrary to policy to recognise and enforce foreign protective measures which purport to authorise a deprivation of liberty of a person in England and Wales, or at the very least it is contrary to public policy to do so when (as here):
(1) The additional procedural safeguards would apply to a placement from a Convention country under Article 33 do not apply;
(2) The person is over 18;
(3) The person has the relevant decision–making capacity, and
(4) The person objects to the order being recognised and enforced.
Mr Rees further submits that the extent to which a measure purports to interfere with the autonomy of a person whom English law would recognise as capacitous must be relevant when determining the extent to which it offends public policy. Ms Weereratne argues that, as a broad proposition, a procedure such as that in part 4 of Schedule 3 which mandates the recognition and enforcement of such orders by foreign Courts by this Court, with limited powers of review or scrutiny, must be of concern, not only to this Court, but to the public as a whole. Any effective scrutiny process must enable the Court to hear or direct evidence on points of law, whether substantive or procedural, that are of concern. Mr Rees acknowledges, however, that the public policy grounds for recognising and enforcing a protective measure made by a foreign state are far stronger where there is an expectation that the Courts of that state will reciprocate in relation to protective measures emanating from the Courts of this country by reason of the fact that both countries are bound by their ratification of an international instrument, such as Brussels IIR.
- So far as section 19(4)(a) is concerned, Mr Setright, Mr Ruck Keene and Ms Butler-Cole rely on the observation of Hedley J in Re MN, surpra, at paragraph 26:
"A decision of an experienced Court with a sophisticated family and capacity system would be most unlikely ever to give rise to a consideration of [sub-paragraph] 4(a); the use of the word "manifestly" suggests circumstances in which recognition of an order would be repellent to the judicial conscience of the Court."
They draw attention to the analogous provisions for recognition and enforcement of orders in cases concerning children under the Brussels II Regime. Article 21(1) of Brussels IIR:
"A judgment given in a member state shall be recognised in the other member states without any special procedure being required."
Article 23 of Brussels IIR, which bears close resemblance to Article 22 of the 2000 Convention and Schedule 3 paragraph 19 of the MCA provides inter alia:
"A judgment relating to parental responsibility shall not be recognised (a) if such recognition is manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child…"
As Holman J observed in Re S (Brussels II: Recognition: Best Interests of Child) (No.1)  1 FLR 571 (concerning the equivalent provisions in the regulation which proceeded Brussels II R and was in identical terms to Article 23 of the later regulation) at paragraph 32:
"to say that something is contrary to public policy is a high hurdle, to which the Article adds the word "manifestly"".
In LAB v KB (Abduction; Brussels II Revised)  2 FLR 1664, Roderic Wood J observed at paragraph 32 that cases in which an order of a foreign Court would be so strongly contrary to the welfare of the child that its recognition was manifestly contrary to the public policy of the state,
"would be extremely rare, and the consequences for the children of recognition and enforcement, though they are separate stages from each other, would have to be of the utmost seriousness."
Both comments were approved by the Court of Appeal in Re L (A Child) (Recognition of Foreign Order)  EWCA Civ 1157 where Munby LJ observed that:
"the test is stringent, the bar …is set high."
Mr Setright submits that this is an illustration of the general rule that principles of international comity provide that orders from other jurisdictions should be followed, recognised and enforced.
- The overriding argument advanced on behalf of the HSE is that Schedule 3 needs to be interpreted in its own terms. If not, the Court of Protection would need to conduct its own wide-ranging review, and that would, in Mr Setright's phrase, drive a coach and four through the scheme of the Convention.
- On behalf of the Official Solicitor, Mr Rees draws attention to paragraphs 12 and 17 of Schedule 3 (cited above) and submits that the effect of these provisions is that, even where there is not a conflict or inconsistency between the foreign protective measure and domestic law such that the Court will be justified in disapplying the foreign protective measure, the foreign order must still take effect subject to mandatory provisions of English law.
- The impact of this provision will depend on the order which the Court is being asked to enforce. In Re MN, supra, for example, the order of the foreign Court was for the return of MN to a foreign country, California. As Mr Rees points out, recognition and enforcement of that order amounted to a "one off" step. In contrast, the three Irish cases involve a continuing process taking place in England. In such circumstances, Mr Rees raises the question as to the impact of paragraphs 12 and 17 of Schedule 3 and asks how English law should apply for the purposes of implementing the Irish orders. He points out that, under the MHA 1983, a person detained under section 3 has a right to a review by a tribunal and other safeguards. If PA and PB are eligible by reason of their mental illness to be detained under that Act, does English law import as of right, for the purposes of governing the implementation of the Irish orders, all the safeguards which would be conferred if they have been detained under that Act, or do the terms of the Irish orders operate to oust these provisions? Alternatively, what rights or safeguards that would otherwise be provided if their detention was effected under English law are maintained by the operation of paragraph 12 and 17 of Schedule 3 in relation to the implementation of the orders of the Irish Court?
- Mr Setright and his juniors acknowledge that the Official Solicitor has properly raised a number of questions as to how English law applies for the purposes of implementing the relevant Irish orders. They submit that the short answer to this question is that this is an intensely fact-specific issue. In cases concerning deprivation of liberty, this Court must look to be satisfied whether it is an order that, in substance, contains the provisions required to ensure that it has complied with its obligations under Article 5. They submit that the position is akin to that where the High Court has made an order depriving an individual of their liberty under its inherent jurisdiction: see Re Dr A  EWHC 2273 (Fam). They submit that in such a case, the High Court must both at the outset be satisfied that the Winterwerp criteria are met and that proceedings are in place for suitably frequent reviews to secure the individual's rights under Article 5(4).
- As for paragraph 17 of Schedule 3, Mr Setright, Mr Ruck Keene and Ms Butler-Cole submit that this paragraph reflects Article 20 of the 2000 Convention which provides:
"This chapter does not prevent the application of those provisions of the law of the State in which the adult is to be protected where the application of such provisions is mandatory whatever law would otherwise be applicable."
Article 20 falls within Chapter III of the 2000 Convention addressing applicable law, rather than Chapter IV, which governs recognition and enforcement. They draw attention to paragraph 113 of Professor Lagarde's report which states inter alia:
"the exception for mandatory laws of the State in which the adult is to be protected was introduced with a medical field especially in mind. In particular, it was a counterweight to the possibility given to the adult of choosing the law applicable to the powers of representation. "
When considering questions relating to any power of representation for individuals in these circumstances, Article 20 of the Convention, and thus paragraph 17 of the Schedule, do no more than make clear that the second state is not therefore prevented from applying its own mandatory provisions.
Discussion and conclusion on paragraph 19(4)
- At this point, it is instructive to refer to a letter sent by Ms Joan Goulbourn, who has responsibility for "Strategy and Specialist Policy: Mental Capacity" at the Ministry of Justice, dated 2 December 2014. Having declined the invitation, on behalf of the Ministry and of the Department of Health, to participate in the hearing, she made the following observations on behalf of the government departments:
"We appreciate that Courts will find themselves faced with requests for recognition and/or enforcement under Schedule 3 of the 2005 Act in respect of a variety of decisions made under foreign laws. It is entirely possible on the facts of each matter that a domestic Court would have taken a different approach or even found itself to lack jurisdiction, given the difference in the scope of the "domestic" element of the 2005 Act (per s.2) compared to Sch 3…That recognition is nevertheless possible despite differences between the domestic approach and the approach of foreign Courts and their laws seems to us to be precisely what Parliament must have intended in enacting Sch 3.
Inevitably, there may be concerns about some of the foreign jurisdictions from which orders might come. But taking account of such concerns is surely the purpose of the public policy review and the mandatory law rule. Although there should be no general review of the merits of the case, as is usual in private international law instruments of this type, equally the Court is entitled to review merits to the extent that it is necessary to do so in order to establish whether the measure complies with Sch 3 (for example, the "fit" of the measure with the criteria in paragraph 19).
We do not consider that the fact that detention may not be reviewable by a domestic Court is a public policy objection per se. It is clear from the order of the Irish High Court that there is a very sophisticated and tightly drawn system for rapid review by that Court of PA's situation on a regular basis, and in particular if his situation should change…That seems to us sufficient to meet the requirements for review under A.5 ECHR. That article, as of course those involved with this case will be entirely aware, requires that review of detention be available, adequate, undertaken by an independent tribunal to which the detained person has access, and speedy. In this case, a fresh order also seems to be required on a regular basis and would presumably require recognition in this jurisdiction on each occasion. Should PA wish to challenge the order placing him at St Andrew's or any aspect of it, it seems to us that he not only has the opportunity to raise the matter with the Irish Court but also to challenge (or have challenged on his behalf if not litigation capacitous) recognition in this jurisdiction should the grounds to do so exist. In particular, given the likelihood that in many cases the impairment or insufficiency in the adult's personal faculties will fluctuate, we would have thought that it should be possible for that adult to challenge an existing recognition order on the basis of such a change if that goes to the criteria for refusal of recognition, although normally we would expect the challenge to be to the underlying foreign order.
If the Court has concerns regarding an order with which it is presented, it seems to us to be possible for the Judge in the requested jurisdiction to communicate with his or her counterparts in the requesting jurisdiction with a view to ironing out where possible any matters of concern. This approach is specifically anticipated in the 2000 Convention (A.29(1), A.30(a), referring to the role of Central Authorities in promoting co-operation between "competent authorities" which in this context would of course be the Courts of England and Wales (not Ireland) but that does not seem to us to prevent such communication. Clearly, the content of the order will be a matter for the judge in the requesting jurisdiction, but discussion regarding concerns of the requested jurisdiction may lead to adjustment of the order to the satisfaction of all and thus consequent recognition.
That other countries might not reciprocate in terms of recognition seems to us irrelevant. Clearly Sch3 contemplates ratification by England and Wales of the 2000 Convention but its operation is not predicated only upon such ratification nor restricted to reciprocating countries. Many states, including the United Kingdom, have private international law rules in various areas that are not reliant upon any kind of reciprocation by other countries and this is the current effect of Sch 3".
- From this insightful contribution, I draw the following general points of specific relevance to these cases.
- First, by including Schedule 3 in the MCA, Parliament authorised a system of recognition and enforcement of foreign orders notwithstanding the fact that the approach of the foreign courts and laws to these issues may be different to that of the domestic court. These differences may extend not only to the way in which the individual is treated but also to questions of jurisprudence and capacity. Thus the fact that there are provisions within the Act that appear to conflict with the laws and procedures of the foreign state should not by itself lead to a refusal to recognise or enforce the foreign order. Given that Parliament has included section 63 and Schedule 3 within the MCA, clearly intending to facilitate recognition and enforcement in such circumstances, it cannot be the case that those other provisions within the Act that seemingly conflict with the laws and procedures of the foreign state are mandatory provisions of the laws of England and Wales so as to justify the English Court refusing to recognise the foreign order on grounds of such inconsistency. In such circumstances, it is only where the Court concludes that recognition of the foreign measure would be manifestly contrary to public policy that the discretionary ground to refuse recognition will arise. Furthermore, in conducting the public policy review, the Court must always bear in mind, in the words of Munby LJ that "the test is stringent, the bar is set high".
- Secondly, there is likely to be a wide variety in the decisions made under foreign laws that are put forward for recognition under Schedule 3. As the Ministry of Justice has observed, inevitably there may be concerns about some of the foreign jurisdictions from which orders might come. But as the Ministry also observes, taking account of such concerns is surely the purpose of the public policy review. Although no wide-ranging review as to the merits of the foreign measure is either necessary or appropriate, a limited review will always be required as indicated by the European Court in Pellegrini. That will be sufficient to identify any cases where the content and form of the foreign measure, and the processes by which it was taken, are objectionable. It also seems to me that the circumstances in which Schedule 3 is likely to be invoked, and the number of countries whose orders are presented for recognition, are likely to be limited. In oral submissions, Mr Rees pointed out that, in theory, the Court could be faced with applications to recognise and enforce orders from any country in the world, including, for example, North Korea or Iran. That may be right in theory, but common sense suggests it is, to say the least, unlikely in practice, at least in the foreseeable future. And if such orders were to be presented for recognition, the public policy review would surely lead swiftly to identifying grounds on which recognition would be refused. It is much more likely that the orders presented for recognition will be those of foreign countries whose legal systems, laws and procedures are closely aligned to our own. Concerns of this nature can be addressed by admitting evidence of the process by which the foreign protective measures were made and general evidence relating to the legal system of the state that made the order.
- Thirdly, most orders presented for recognition are likely to be of short duration, and/or in respect of persons whose capacity may fluctuate, and/or who are in receipt of a progressive form of treatment. As a result, in such cases there is likely to be repeated requests to scrutinise a succession of orders. Recognition and enforcement is likely to require close co-operation, not only between the medical and social care authorities of the two countries, but also between the Courts and legal systems. The Convention provides a mechanism using the Central Authorities but, pending ratification of the Convention, there may well be the need for direct communication between judges of the two jurisdictions.
- Turning back to the facts of the present cases, I adopt the approach proposed by Mr Setright, Mr Ruck Keene and Ms Butler-Cole that this Court should conduct a limited review to satisfy itself that the Irish orders comply with the ECHR, and in doing so should strive to achieve a combined and harmonious application of the provisions of the two international instruments. I accept their submission that, when considering applications to recognise and enforce compulsory psychiatric placements under Schedule 3, the limited review should encompass the Court being satisfied that (1) the Winterwerp criteria are met and (2) that the individual's right to challenge the detention under Article 5(4) is effective (i.e. that they have a right to take proceedings to challenge the detention and the right to regular reviews thereafter).
- Having considered the orders of the Irish Court, and transcripts of the relevant judgments, I am satisfied that the Winterwerp criteria are met in this case. Furthermore, as Mr Setright observes, the decisions in these cases have been made by judges of the Irish High Court in proceedings in which the individuals have each been represented by Senior Counsel instructed by a guardian ad litem, and extensive safeguards have been included in the Irish orders to ensure that regular reviews take place. Although the orders, in particular the order in PB's case, does, as the Official Solicitor submits, vest in the HSE and St Andrew's powers to consent and make arrangements for treatment, the fact that the Irish orders are subject to regular reviews by the Irish Court at which the individual will be represented ensures, to my mind, that Article 8 rights are not infringed. I therefore conclude that the Irish measures are not inconsistent with Articles 5, 6 and 8 of ECHR.
- As for the alleged conflict with other provisions of the MCA, I conclude, as already stated, that, by including Schedule 3 in the MCA, Parliament must be assumed to have permitted orders to be recognised that did not comply with other laws and procedures under the statute. As the definition of "adult" in Schedule 3 para 4 plainly extends to persons who may not be incapacitated within the meaning of section 2, it follows that the Court will be obliged to recognise and enforce orders of a foreign court in terms that could not be included in an order made under the domestic jurisdiction under the MCA. This is subject, however, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy. I agree and adopt Hedley J's conclusion in Re MN that a decision to recognise under paragraph 19(1) or to enforce under paragraph 22(2) is not a decision governed by the best interests of the individual so that those paragraphs are not disapplied by paragraph 19(4)(b) and section 1(5) of the Act. Thus it follows that the Court will be obliged to recognise and enforce a measure in a foreign court order even where applying a best interests test it would not be included in an order made under the domestic jurisdiction under the MCA. Again, however, this is subject, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy. I agree with and adopt Mostyn J's conclusion that an order recognising and enforcing a foreign measure under Schedule 3 is not a welfare order as defined in section 16A(4)(b). The rules as to ineligibility in section 16A therefore do not apply. This means that the Court will be obliged to recognise and enforce orders of a foreign court depriving an individual of his liberty in circumstances in which it would not able to do so under the domestic jurisdiction under the MCA on the grounds that the individual is being treated or is treatable under the MHA as defined in Schedule 1A of the MCA. Once again, however, this is subject, to its discretion to refuse recognition and enforcement where that would be manifestly contrary to public policy.
- In other words, the issues raised on these submissions do not lead to a finding that a measure in a foreign order is inconsistent with a mandatory provision of the law of England and Wales because, by including Schedule 3 within the MCA, Parliament was disapplying the other provisions of the statute in cases falling within the Schedule. However, they may entitle the Court to refuse recognition and enforcement where, on the facts of the case, the Court concludes that the measure is manifestly contrary to public policy.
- In this context I must address the specific point made by Ms Weereratne on the issue of ineligibility. Looking at the substance of the order in PB's case, she raises the point that a person who under the domestic processes of the MCA would be ineligible to be deprived of their liberty under the MCA and therefore entitled to the benefit of the safeguards of the MHA may be deprived of their liberty under a foreign order recognised and enforced under Schedule 3 and thereby denied the benefit of the safeguards of the MHA. I agree that, looking at the substance as opposed to the form, it seems to me that it would be contrary to public policy for someone who is mentally ill and detained in hospital not to be allowed to make regular challenges to their detention. On the facts of these cases, however, the very regular reviews included in the Irish orders provides each individual with just such an opportunity. I therefore conclude on this point that the Irish orders are not manifestly contrary to public policy.
- As for the wider argument about public policy, I accept the submissions advanced on behalf of the HSE. In Munby LJ's words, "the test is stringent, the bar is high". I do not accept the thrust of Mr Rees' submissions that it is open to this Court to refuse recognition and enforcement of the foreign order simply because the individual may have the relevant decision-making capacity and objects to the order being recognised and enforced. I agree with Mr Setright that such an approach would undermine the whole purpose of Schedule 3.
- Finally, as to implementation of the order, I do not accept Mr Rees's submission that the effect of paragraphs 12 and 17 of the Schedule is that, in respect of a person who is the subject of a protective measure in a foreign order, but who would be ineligible to be deprived of his liberty under the domestic provisions of the MCA by virtue of s.16A(4)(a) and Schedule 1A, is automatically entitled to all the statutory safeguards under the MHA. So far as paragraph 17 is concerned, for the reasons discussed above, the ineligibility provisions of the MCA are not mandatory in respect of such persons because Parliament has included Schedule 3 within the statute. In my judgment, the "conditions of implementation" under paragraph 12 are that the requirements of the ECHR are met, in particular the Winterwerp criteria and reviews of sufficient regularity to satisfy Article 5(4).
- I turn to the specific orders in these three cases. In each case, I conclude that the individual – PA, PB and PC – is an adult within the meaning of paragraph 4 of the Schedule. I conclude that each is habitually resident in the Republic of Ireland. Having considered the orders of the Irish Court, and the provisions in each order that amount to "protective measures" within the meaning of Schedule 3, (including, in each case, the provision that each individual shall be placed and detained at St Andrew's and the various ancillary orders to facilitate and support the placement and detention), I conclude that there are no grounds for refusing to recognise the measures under paragraph 19(3) or (4). I conclude in each case that the individual was given a proper opportunity to be heard for the purposes of paragraph 19(3)(b); that in each case the individual – PA, PB and PC – satisfies the criteria for detention under Article 5(1)(e), namely the Winterwerp criteria; that the orders of the Irish Court demonstrate that each will be afforded a regular right of review of his or her detention so as to comply with the ongoing requirements of Article 5(4); that as a result recognising and enforcing the orders will not contravene the ECHR; that the measures in each case are not inconsistent with any other mandatory provision of the law of England and Wales; and that the measures cannot be said to be manifestly contrary to public policy. I shall therefore make the orders declaring that the protective measures in the said orders shall be recognised in England and Wales and enforced in this jurisdiction.
- Finally, Mr Setright, Mr Ruck Keene and Ms Butler-Cole suggest that the Court may wish to use this opportunity (1) to give guidance as to the requirement that must be satisfied in relation to applications for recognition and enforcement of protective measures providing for compulsory psychiatric treatment of adults within the meaning of the 2000 Convention in institutions in this country and (2) to give guidance as to the allocation of such cases pending the coming into force of rules to support Schedule 3 which are going to be considered by the ad hoc Rules Committee as part of the second tranche of its work being undertaken later this year.
- As to the former, I do not propose to go beyond what I have said in the context of the facts of this case earlier in this judgment. As to the latter, there was insufficient time at the hearing to consider this proposal in more detail. It seems to me that guidance of the sort proposed by counsel requires careful thought and I hesitate therefore to embark upon that process without further analysis. If, however, counsel wish to pursue this course, I direct that they submit a joint document incorporating their proposals (if possible agreed) by the end of June 2015. I shall then consider, in consultation with the President, what course to take. I hope that the Court of Protection Rules will in due course be amended to incorporate comprehensive rules to support Schedule 3 as soon as possible, including rules as to allocation of applications under the Schedule. Pending the introduction of such rules, any application under Schedule 3 at this stage should be listed before a full High Court Judge in the first instance, and thereafter, all further hearings in connection with that application, and any further applications under the Schedule in respect of the same individual, should be listed before the same judge (if available) unless expressly released by him or her to another judge.
- One issue which requires clarification by the ad hoc Rules Committee is whether a litigation friend should be appointed. Rule 141(2) of the Court of Protection Rules stipulates that where P is a party to proceedings he must have a litigation friend. Rule 6, in so far as relevant, defines "P" as "any person (other than a protected party) who lacks, or so far as consistent with the context, is alleged to lack capacity to make a decision or decisions in relation to any matter that is the subject of an application to the Court". In supplemental submissions in the case of PC, Mr Rees argues that this definition is not apt to cover the situation where the Court is dealing with the recognition and enforcement of a foreign order who may be an "adult" for the purposes of Schedule 3 paragraph 4(1) but who is not alleged to lack capacity to make the relevant decisions. I did not have the benefit of detailed argument on this matter, but my preliminary view is that someone who is the subject of a protective measure in a foreign order that is submitted for recognition and enforcement under Schedule 3 is, in "the context", a person who is "alleged to lack capacity to make a decision or decisions in relation to any matter that is the subject of the application". Pending consideration of this issue by the Rules Committee, I therefore consider that a litigation friend should be appointed to act for an individual who is the subject of an application for recognition and enforcement under Schedule 3 save in cases (such as the three cases before me) where the court is satisfied that the individual has capacity to conduct the litigation.
- Finally, I should record that, in her submissions on behalf of St Andrew's Healthcare, Miss Lee argues that, in the event that the Court declines to recognise and enforce the Irish orders, it should authorise the detention of PA and PB under the inherent jurisdiction of the High Court for a short period pending their return to Ireland being implemented. This proposition was not accepted by the Official Solicitor or PB. On behalf of the Official Solicitor, Mr Rees argued that any temporary detention pending return should instead be authorised under the MHA and an attempt to invoke the inherent jurisdiction would risk circumventing the statutory protections afforded to mentally ill persons under that Act. As I have concluded that the Irish orders should be recognised and enforced, however, it is unnecessary to resolve this issue in this judgment.