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Government to appeal against striking down of residence test

The Government has said that it will appeal against the decision yesterday to strike down its attempt to introduce a residence test for legal aid.

Ruling on a challenge to the test brought by the Public Law Project, in which the Children’s Commissioner intervened, the Administrative Court unanimously concluded yesterday that the draft regulations currently before parliament could not be enacted by secondary legislation.  The court further held that the discrimination against those who could not satisfy the residence test could not be justified solely on the grounds of saving money.

Good practice in habitual residence cases

Sir James Munby P, sitting in the Court of Appeal, in Re F (A Child) [2014] EWCA Civ 789, has set out some basic propositions that apply in relation to the determination of habitual residence in cases involving children.   Whilst they were stated in the context of the application of Council Regulation 2201/2203 (known as Brussels II revised (BIIR)), they are of wider application and it suggested that (with one exception highlighted below) the core procedural aspects apply equally to the determination of habitual residence by the Court of Protection:

11.

[…]

i)                Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence. It is well established by both European and domestic case-law that BIIR applies to care proceedings. It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a foreign dimension is, therefore, an inquiry as to where the child is habitually resident.

ii)              […]

iii)             Jurisdiction under Article 8(1) depends upon where the child is habitually resident ‘at the time the court is seised.’ [note, in cases under Schedule 3 to the MCA 2005, jurisdiction under the MCA 2005 depends upon where the individual is habitually resident at the point when the court determines the question of habitual residence: Re PO; JO v GO [2013] EWHC 3932 (COP) at paragraph 21]

 iv)             Since the point goes to jurisdiction it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the Case Management Hearing: see Nottingham City Council v LM and others [2014] EWCA Civ 152, paras 47, 58.

v)         Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction. This is necessary to demonstrate that the court has actually addressed the issue and to identify, so there is no room for argument, the precise basis upon which the court has proceeded: see Re E, paras 35, 36.

vi)        Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties: Re E, para 36.

There is a further point to which it is convenient to draw attention. If it is, as it is, imperative that the issue of jurisdiction is addressed at the outset of the proceedings, it is also imperative that it is dealt with in a procedurally appropriate manner:

i)       The form of the order is important. While it is now possible to make an interim declaration, a declaration made on a ‘without notice’ application is valueless, potentially misleading and should accordingly never be granted: see St George’s Healthcare NHS Trust v S, R v Collins and Others ex p S [1999] Fam 26. If it is necessary to address the issue before there has been time for proper investigation and determination, the order should contain a recital along the lines of ‘Upon it provisionally appearing that the child is habitually resident …’ Once the matter has been finally determined the order can contain either a declaration (‘It is declared that …’) or a recital (‘Upon the court being satisfied that …’) as to the child’s habitual residence.

ii)      The court cannot come to any final determination as to habitual residence until a proper opportunity has been given to all relevant parties to adduce evidence and make submissions. If they choose not to avail themselves of the opportunity then that, of course, is a matter for them, though it is important to bear in mind that a declaration cannot be made by default, concession or agreement, but only if the court is satisfied by evidence: see Wallersteiner v Moir [1974] 1 WLR 991.

[A version of this note appeared in the July 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]

Court of Protection Rules Committee convened

The Court of Protection Rules Committee is an ad hoc committee set up by the President of the Court of Protection and chaired by the Vice President.  The Committee is to review the Rules in light of recent developments including the Supreme Court judgment in Cheshire West.   A previous committee had recommended changes to the Rules in 2010, the majority of which have yet to be implemented; further changes subsequently (including amendments to the Civil Procedure Rules with effect from 1 April 2013) have made the need for changes to the Court of Protection Rules even more pressing.   Further updates will be provided as and when possible.

Varying and revoking substantive orders

On an application to revoke an order made under the 1980 Hague Child Abduction Convention, Mostyn J has held in TF v PJ [2014] EWHC 1780 (Fam)  that the reference in the Family Procedure Rules 2010 r.4.1(6) to the court having a power to vary or revoke an order made under the rules was not confined to procedural or case management orders.  Rather, it could apply equally to final orders such that (for instance) a High Court judge may vary or revoke a substantive final order made by another High Court judge.  Applying dicta from the Court of Appeal in civil cases (Tibbles v SIG Plc [2012] EWCA Civ 518, [2012] 1 WLR 2591 and Mitchell v News Group Newspapers [2013] EWCA Civ 1537, [2014] 1 WLR 795, Mostyn J held that the only circumstances where the rule could be invoked were where there had been non-disclosure or a significant change of circumstances.

It is suggested that this approach holds equally true to the provisions of rule 25(6) of COPR 2007 which provides – in identical terms to FPR 2010 r 4.1(6) – that “A power of the court under these Rules to make an order includes a power to vary or revoke the order.”

[A version of this note appeared in the July 2014 Thirty Nine Essex Street Mental Capacity Law Newsletter]