AB V XS [2021] EWCOP 57

This matter concerns an application for the Protected Party, XS, to return to the UK from Lebanon.

XS was born in Lebanon in 1944. She came to the UK in 1971 and at some point became a UK citizen. In 2013 she was diagnosed with Alzheimer’s Disease and was detained under the Mental Health Act 1983, but was discharged later that year. On 25 May 2014 she moved into a care home in North London. In September 2014, XS expressed an interest to return to Lebanon for a period of time, and a capacity assessment was undertaken which concluded that XS had capacity. XS travelled to Lebanon later that month and moved into a flat very close to that of her brother. Sadly, in April 2016, her brother died and XS was moved into a care home in Beirut, the evidence suggesting that XS had lost capacity by this point.

XS’s cousin, the Applicant, wished to bring XS back to the UK as she believes that is what XS would have wanted. However, her application was opposed by two of XS’s nephews who both live in the USA. They obtained a Travel Ban order from the Lebanese Court in December 2020.

There were three main issues before the court, namely (1) whether XS is habitually resident in England and therefore the Court of Protection retains jurisdiction; (2) whether the High Court can make an order for XS to return to the UK under the inherent jurisdiction; and (3) whether it is in XS’s best interests to be brought back to the UK.

Mrs Justice Lieven was of the view that, on the evidence, XS’s country of habitual residence is now Lebanon, and therefore she could not make an order for her return under the Mental Capacity Act 2005 (‘MCA’). She acknowledged that the MCA has provisions in Schedule 3 for making welfare decisions in respect of incapacitated adults with an international dimension, however she believed that it would be inappropriate to make an order under the inherent jurisdiction in this case. Further, and in any event, she did not consider that it is in XS’s best interests for her to be returned to the UK.

In reaching this conclusion Mrs Justice Lieven fully took into account the strong views of the Applicant that XS would have wished to return to the UK. However, she had to judge the situation as it is now, and what is in XS’s interests now.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Julie Fitzpatrick here

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