IntroductionCross-border mattersPrivate international lawCross-border matters:private international lawCross-border mattersCross-border mattersCross-border matters
26.1The majority of cases before the Court of Protection concern the property or personal welfare of people who are habitually resident in England and Wales. However, the Mental Capacity Act (MCA) 2005 also includes detailed provisions relating to the powers of the court over people who are habitually resident other than in England but in respect of whom, for whatever reason, declarations or decisions are sought. This might be, for instance, because an incapacitated adult has been kidnapped from their home country and brought to England and Wales. In such a case, an order may well be sought in their home country seeking their return; Schedule 3 to the MCA 2005 contains provisions detailing when and how such an order would be given effect by the Court of Protection. Alternatively, a question might arise as to the proper disposal of property in England belonging to someone habitually resident abroad upon whose behalf decisions are now being taken by a guardian appointed under the laws of that country.
26.2The private international law rules governing decision-making for incapacitated adults with a foreign connection is a complex topic, a full discussion of which lies outside the scope of this book.
1Readers are directed to Frimston et al, International Protection of Adults, Oxford University Press, 2015. The complications are only increased by the fact that MCA 2005 Sch 3 implements – as the law of Wales – many of the provisions of the Hague Convention on the International Protection of Adults 2000 (‘Hague 35’), but the UK has not, to date, ratified the convention as regards England and Wales.
2It has done so in respect of Scotland.26.3This chapter limits itself to highlighting those jurisdictional questions that are most likely to arise in the court setting before noting the position in relation to foreign lasting powers of attorney (LPAs) (ie powers made under other legal systems which have a similar effect to LPAs).
26.4Practitioners should be aware that it is likely that procedural rules for applications engaging MCA 2005 Sch 3 will be enacted in due course; updates can be found at www.courtofprotectionhandbook.com.