In the joined cases of DB (by his litigation friend, the Official Solicitor) v Worcestershire County Council and others; and EC (by his litigation friend, the Official Solicitor) v Worcestershire County Council and others  EWCOP 30 (17 June 2016), Baker J considered whether two Scottish men who had been detained in a hospital in England had established a habitual residence in this jurisdiction so that the Court of Protection would have jurisdiction to make decisions concerning their care and residence under ss.15 and 16 of the Mental Capacity Act 2005.
Both DB and EC had profound learning disabilities and complex behavioural problems. Both now in their late 20s/early 30s, they had been born and raised in Scotland where they had been subject to detention orders and compulsory treatment orders under relevant Scottish legislation. They were then transferred to a hospital unit in England specialising in the care of young people with learning disability and autism, where they were initially detained under s.3 of the Mental Health Act 1983 and later, after improvements in their behaviour, under standard authorisations. DB and EC had been living in the English hospital for 7 ½ and 6 years respectively when applications under ss.15 and 16 MCA 2005 were made to the Court of Protection.
The preliminary issue to be determined was whether DB and EC were habitually resident in the jurisdiction of England and Wales.
Baker J noted the conclusion of Moylan J in An English Authority v SW and others  EWCOP 43 that “habitual residence” under the MCA 2005 has the same meaning as applied in family law, and in particular under Council Regulation (EC) 2201/2003 (“Brussels IIA”). He therefore reviewed the key family law cases, Proceedings Brought by A (Case C- 523/07)  Fam 20; Mercredi v Chaffe (Case C-497/10PPU)  Fam 22 and the Supreme Court decisions in Re A  UKSC 60 and Re LC  UKSC 1. Baker J distilled the following principles from the case law:
- habitual residence is a question of fact and not a legal concept such as domicile;
- the test adopted by the CJEU is family cases “the place which reflects some degree of integration by the child in a social and family environment”;
- this depends on numerous factors, including the reason for the family’s stay in the country in question;
- relevant factors will include factors which are capable of showing that presence is not in any way temporary or intermittent and that residence of the child reflects some degree of integration in a social and family environment (though, as observed by Moylan J in SW, this is not a determinative, or even necessarily the primary factor);
- the social and family environment of an infant or young child is shared with those on whom he is dependent;
- the essentially factual 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;
- habitual residence must as a general rule have a certain duration which reflects an adequate degree of permanence, though there is no minimum duration;
- the residence in a particular place must have acquired a necessary degree of stability to become habitual.
Applying those principles to the facts of the cases before him, Baker J considered that on the one hand, DB and EC had remained resident at the hospital unit for 7 ½ and 6 years respectively, and during that time had not resided anywhere else or left the jurisdiction. Although the long term plan in each case had been to return to Scotland eventually, it had been understood in each case that the stay at the hospital unit would be indefinite. The purpose of admission to the hospital was to receive long-term treatment and that both men had achieved a degree of stability which had been crucial to the progress that each had made.
On the other hand, both DB and EC were Scottish and it had always been intended that they would return to Scotland. Their families remained in Scotland and neither had established friendships or relationships in England beyond the confines of the hospital. Neither had significant access to the local community outside the hospital.
In reaching his conclusion, Baker J placed considerable reliance on the fact that DB and EC were unable to integrate in a family or social environment anywhere in a conventional way:
“[A]lthough the lives of DB and EC in England have not been characterised by the degree of social or family integration enjoyed by most people, the individual circumstances of both DB and EC mean that neither is able to integrate in a family or social environment anywhere in a conventional way. Wherever he resides, the life of each of them would be focused on his residential unit. Within these restricted circumstances, and having regard to all the factors identified above, I find that each has achieved a degree of integration at X Hospital.
Balancing all the relevant factors identified by the parties, it is clearly established in my judgment that each has acquired habitual residence in England.”
The judgment is available here.