Factual and Procedural Background
This case concerns a young person under 16 years of age ("Plaintiff"), a British citizen with substantial assets in England. The Plaintiff suffers from severe brain damage resulting in significant disabilities and requires 24-hour care. A property and affairs deputy ("Deputy") was appointed by the Court of Protection to manage the Plaintiff's assets. The family, originally residing in England, relocated to India on a long-term basis. The Deputy applied for specific authorities to manage expenditure from the Plaintiff's funds, including purchasing property in India, making lifetime gifts, paying fees, and reviewing security requirements.
The Plaintiff's litigation friend contended that the Court of Protection lacks jurisdiction because the Plaintiff is now habitually resident in India, and sought the discharge of the deputyship appointment. The jurisdiction issue was agreed to be determined as a preliminary matter. The Plaintiff has two younger siblings also joined as parties. The Deputyship concerns assets held entirely in England, including cash accounts, investment portfolios, and premium bonds totaling several million pounds.
Procedurally, the Court of Protection scheduled a hearing to decide the jurisdiction question, with the Official Solicitor acting as litigation friend for the Plaintiff. The hearing bundle included statements from the Deputy, the Respondents, and expert legal advice on Indian law regarding guardianship and property management for minors.
Legal Issues Presented
- Does the Court of Protection retain jurisdiction over the property and affairs of the Plaintiff, a minor now habitually resident in India but with assets located in England?
- Whether the deputyship appointment should be discharged due to the Plaintiff’s change of habitual residence outside England and Wales.
- How the provisions of the Mental Capacity Act 2005, particularly section 18(3) and Schedule 3, interact with international conventions (notably Hague 34 and Hague 35) in determining jurisdiction over minors with property in England but habitually resident abroad.
Arguments of the Parties
Applicant's Arguments (Deputy)
- The courts of England and Wales have jurisdiction to manage property situated within their territory, regardless of the habitual residence of the minor.
- Schedule 3 of the Mental Capacity Act 2005 is limited to adults and does not exclude jurisdiction over minors under section 18(3) of the Act.
- Article 14 of Hague 34 supports retention of jurisdiction to ensure continuity and security of protective measures despite a change in habitual residence.
- Section 47 of the Mental Capacity Act confers on the Court of Protection the same powers as the High Court in connection with its jurisdiction, including inherent jurisdiction over property of persons lacking capacity.
- Pragmatically, it would be incongruous for the Court to lose jurisdiction the day before the Plaintiff’s sixteenth birthday but regain it the next day.
- Historical common law cases support jurisdiction over property of minors residing abroad when the property is in England.
Respondents' Arguments (Plaintiff’s Litigation Friend)
- The Court of Protection’s jurisdiction over minors is based on habitual residence, similar to the Family Court.
- Since the Plaintiff is habitually resident in India, the Court of Protection no longer has jurisdiction.
- Jurisdiction over the Plaintiff’s property and affairs lies with Indian courts under Indian law and international conventions.
- There is no statutory or inherent jurisdiction for the Court of Protection to manage property of minors habitually resident abroad.
- Retention of jurisdiction risks concurrent and conflicting decisions between English and Indian authorities.
- Once habitual residence changes, the Deputy’s authority ceases, and the deputyship should be discharged.
Second and Third Respondents’ Position
- Neutral on the jurisdiction issue to avoid unnecessary costs.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re O (Court of Protection: Jurisdiction) [2014] Fam 197 |
Jurisdiction of the Court of Protection is not a best interests decision. |
Confirmed that jurisdictional questions are distinct from best interests considerations. |
| Re Heyworth's Settlements [1956] 2 All ER 21 |
Limits on the High Court’s jurisdiction over minors' property. |
Supported argument that High Court does not have broad inherent jurisdiction over minors’ property. |
| Allen v. Distillers Company (Biochemical) Ltd [1974] 1 QB 384 |
Jurisdictional principles relating to property management. |
Used to argue absence of inherent High Court jurisdiction over minors’ property. |
| Re B [2022] 4 WLR 34 |
Parental responsibility as usual basis for court orders regarding minors' property. |
Emphasized parental responsibility framework over inherent court jurisdiction. |
| Logan v. Fairlee (1821) 37 ER 822 |
English courts’ jurisdiction over property of minors residing abroad. |
Supported common law rule that English courts have jurisdiction over property situated in England. |
| De Weever v. Rochport (1843) 49 ER 876 |
Appointment of attorneys to receive maintenance for minors abroad. |
Confirmed English court’s jurisdiction to oversee property management despite minor’s residence abroad. |
| Hope v. Hope (1854) 43 ER 534 |
Parens patriae jurisdiction of English courts over children residing abroad with property in England. |
Supported jurisdiction to make orders for children residing abroad with English property. |
| R(SM) v. Court of Protection [2021] EWHC 20146 (Admin) |
Section 47 powers of the Court of Protection. |
Used to argue the Court’s inherent powers to make orders concerning property of persons lacking capacity. |
| DL v. A Local Authority [2012] EWCA Civ 253 |
Common law rules on jurisdiction over property and persons lacking capacity. |
Supported argument for common law jurisdiction supplementing statutory scheme. |
Court's Reasoning and Analysis
The Court acknowledged the statutory framework under the Mental Capacity Act 2005, particularly sections 2(5), 2(6), 16, 18(3), and Schedule 3, which governs jurisdiction over persons lacking capacity and their property. The Court noted that although section 2(5) generally precludes powers under the Act for persons under 16, exceptions exist for those likely to lack capacity at 18.
The Court considered the international conventions relevant to jurisdiction: Hague 35 (Convention on the International Protection of Adults) and Hague 34 (Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for Protection of Children). Hague 35 applies to adults (16+), while Hague 34 applies to children up to 18.
Since the Plaintiff is under 16 and habitually resident in India (a non-signatory to Hague 34), the Court examined the interplay between the statutory provisions and international law. The Court found Article 14 of Hague 34 particularly instructive, as it provides for continuation of protective measures despite a change in habitual residence, including to a non-Contracting State, so long as the new jurisdiction has not modified or terminated those measures.
The Court rejected the argument that the Court of Protection’s jurisdiction terminates automatically upon the Plaintiff’s change of habitual residence. Instead, the deputyship appointment is a protective measure that continues until terminated by the Court or death of the protected person.
The Court found that the Court of Protection retains jurisdiction over the Plaintiff’s property in England and Wales after the change of habitual residence, consistent with the purpose of Article 14 to provide legal security and continuity for children and families. The Court further observed that the Deputy’s authority continues lawfully, and that the Deputy’s role and the Court’s oversight remain appropriate and necessary.
The Court acknowledged potential jurisdictional complexities and risks of conflicting decisions but found no persuasive policy or legal reason to decline jurisdiction. The Court limited its conclusion to the facts of this case, recognizing that different circumstances (e.g., a child never habitually resident in England) might lead to a different outcome.
Holding and Implications
The Court holds that the Court of Protection retains jurisdiction over the Plaintiff’s property and affairs in England despite the Plaintiff’s habitual residence now being in India. Consequently, the Deputy’s appointment remains valid and continues to have effect.
The direct effect of this decision is that the Deputy may continue to exercise authority over the Plaintiff’s English assets under the oversight of the Court of Protection. The decision ensures continuity and legal certainty for the management of the Plaintiff’s property and affairs, consistent with the protective aims of the Mental Capacity Act and the relevant international conventions. No new precedent beyond this factual context is established, and the Court invites the parties to agree directions for the substantive application.