The Health Service Executive of Ireland v IM & Anor (Rev 1) [2020] EWCOP 51

This was an application to determine where IM was habitually resident.

IM was 92 years old and had moved to Ireland with her Grandson in September 2018, however prior to September 2018 she had lived in Kent for over 55 years. Whilst living in Kent, she had lived with her Grandson for many years and he had assisted her with her care and daily living. In May 2017, LPAs for both health & welfare and property & affairs were executed with the Grandson and his then Partner as IM’s attorneys. However, it was ascertained from witness evidence that the relationship was poor.

IM’s home was sold on 17/09/18 and the first anyone knew of it was when Sister of IM’s Grandson saw a skip outside the property and became concerned for IM’s welfare that IM’s disappearance was reported to the police and she wrote to the OPG who then began an investigation into possible financial abuse of IM. It was then ascertained that IM, her Grandson and his new Partner had moved to Ireland in September 2018 and had not told anyone.

The OPG investigations found that numerous bank accounts of IM’s had been closed and the funds transferred to other accounts in the UK. Withdrawals had been made in Spain and Ireland, a significant amount of money had been spent in Irish pubs and money had also been transferred to deceased people. It was also ascertained that a property had been purchased in Ireland. The Grandson subsequently renounced both powers of attorney and although no findings were made against him in Court of Protection proceedings brough by the OPG, the evidence did point to him failing to manage IM’s funds properly and to him having spent some of her money. But, he did reimburse those monies from the proceeds of sale of property and funds were transferred in full to the property and affairs deputy appointed by the court.

IM was admitted to a nursing home for respite care on 16/11/18 and following her discharge on 19/12/18, her Grandson engaged a carer to help with her care. However, IM was readmitted to the nursing home on 24/01/19 from hospital and her capacity was not assessed whilst she was in hospital. The Respondent asked the Applicant to assess IM’s needs and to undertake safeguarding checks. Irish police attended at the Grandson’s address and he told them IM was in hospital, which was not correct and the Respondent closed their investigation as IM was now in Ireland.

Since IM's admission to the nursing home in January 2019, periods of confusion were noted in her records and a medical assessment in February 2019 found IM to lack capacity to manage her property and affairs. There was a recent assessment of capacity in May 2020 and this found that IM was orientated in person but not in place or time and to have very little knowledge of her surroundings. IM’s immediate recall was extremely poor and it was considered that she was unable to make informed decisions in any capacity.

IM continued to reside in the nursing home and a final order was made on 18 November 2019 when the court appointed a Deputy for IM's property and affairs. On 22/11/19 the Applicant filed reports with the Court that its view was that IM should return to England and as they were concerned that welfare issues relating to IM were not resolved by the final order, they made an application on 25/11/19 for the appointment of a personal welfare Deputy for IM. Another application replaced this on 28/02/20 and HHJ Knowles approved an order containing interim declarations as to IM's capacity to conduct these proceedings and to make decisions about her residence and care. HHJ Knowles also approved an investigation by the Applicant into IM's backbackground and circumstances to enable her to resolve the issues of residence and care. The Court therefore had to decide on IM's habitual residence to determine whether issues as to her health and welfare were matters for the Court of Protection or the High Court in Ireland.

The Parties were agreed as to the legal framework and jurisprudence HHJ Knowles should consider in resolving the matter and HHJ Knowles concluded that, on the evidence available to her and after considering accounts given by family members with a degree of caution, IM was habitually resident in Ireland and therefore the Irish court should make decision as to her health and welfare. IM had capacity to agree to the move, there was no evidence that she was pressured into moving by her Grandson. She was now settled in Ireland at the care home and, from her behaviour, was seemingly content to stay there.

The full judgement can be read here

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