Court of Protection Recognizes and Enforces Irish High Court Order for Vulnerable Adult with Anorexia

Citation: [2023] EWCOP 55
Judgment on

Introduction

The case [2023] EWCOP 55 in the Court of Protection addresses the recognition and enforcement of an Irish High Court order concerning a young Irish citizen, referred to as RO, with severe anorexic disorder and other associated needs. Mrs Justice Theis presides, enacting the provisions set out in Schedule 3 of the Mental Capacity Act 2005 and drawing from relevant case law, to guide the decision-making process.

Key Facts

RO, an Irish citizen with complex medical needs, was admitted to a specialist clinic in the UK following an order from the Irish High Court, subsequently recognized and enforced by the UK Court of Protection. The issue at hand is the recent application for this UK Court to recognize and enforce a subsequent Irish High Court order under the inherent jurisdiction, as opposed to wardship. This legal shift prompts consideration of whether the specified protective measures for RO continue to satisfy the legal requirements for enforcement in the UK.

The judgment by Mrs Justice Theis hinges on several key legal principles and frameworks:

  • Schedule 3 of the Mental Capacity Act 2005: Provides for recognition and enforcement of foreign protective measures, focusing on individuals over 18 who cannot protect their interests because of personal faculty impairments.

  • 2000 Hague Convention on the International Protection of Adults: Despite the UK and Ireland’s differing statuses regarding the Convention, Schedule 3 of the MCA allows for applications such as the one in question.

  • Recognition and Enforcement Criteria: The Court reviews if RO is considered an ‘adult’ under Paragraph 3, the protective measures fall under Paragraph 5, and RO was habitually resident in Ireland when the measures were taken. Further, procedural justice in terms of opportunity to be heard and compliance with the European Convention on Human Rights (particularly Article 5 regarding liberty and secure review under Article 5(4)) must be considered.

  • Public Policy Consideration: In line with Paragraphs 19(4)(a) and (b) of Schedule 3, the UK court assesses if enforcing the Irish order would conflict with the public policy or mandatory provisions of English and Welsh law.

  • Role of Judicial Discretion: The court retains a degree of discretion, especially concerning whether an attended hearing is necessary, based on the seriousness and international implications of the case. This decision is framed by references to Practice Direction 23A and case law, particularly Re SV ([2023] 4 WLR 3), which outlines the customary requirement for a hearing in similar cases.

Outcomes

The Court concludes that the Irish High Court’s protective measures for RO should be recognized and enforced in the UK, finding that they satisfy the criteria established under Schedule 3. The Court of Protection, per Mrs Justice Theis, underscores the obligations and limitations that govern the recognition and enforcement work within the outlined framework and emphasizes that the switch to inherent jurisdiction does not substantively affect that process.

Conclusion

The judgment [2023] EWCOP 55 provides insight into the complex interplay between domestic and international law in the field of protective measures for vulnerable adults. The court systematically applies legal frameworks, including Schedule 3 of the Mental Capacity Act 2005 and pertinent case law, ensuring that protective measures ordered by foreign courts comply with UK requirements. Mrs Justice Theis’ scrutinizes the principles enshrined in the European Convention on Human Rights, public policy considerations, and the necessity of an attended hearing, affirming the subtle balance between upholding the rights of individuals and respecting international judicial cooperation.