Recognition and enforcement of foreign protective measuresRecognition and enforcement of foreign protective measuresProtective measures:foreign:recognition and enforcementCross-border matters:recognition and enforcement of foreign protective measuresCross-border mattersRecognition and enforcement of foreign protective measuresProtective measures:foreign:recognition and enforcementCross-border matters:recognition and enforcement of foreign protective measuresCross-border mattersRecognition and enforcement of foreign protective measuresProtective measures:foreign:recognition and enforcementCross-border matters:recognition and enforcement of foreign protective measuresCross-border matters
26.9Perhaps the most important function of the provisions of MCA 2005 Sch 3 is to put in place a mechanism for declarations to be obtained that foreign ‘protective measures’ be recognised and enforced in England and Wales. Such ‘protective measures’ will include any measure directed to the protection of the person or property of an adult, who for these purposes is any person over 16
1Except if they are aged 16 or 17 and subject to the provisions either of the 1996 Convention on the Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children or Council Regulation (2201/2003) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. who, as a result of an impairment or insufficiency of his personal faculties, cannot protect their interests.
2MCA 2005 Sch 3 para 4. The MCA 2005 gives examples of such protective measures;
3MCA 2005 Sch 3 para 5. examples that have come before the Court of Protection include:
•an order made by a Californian court requiring the return of an adult to California after her removal from the jurisdiction to England in questionable circumstances;
4Re MN. and
•the placement of Irish nationals in an English psychiatric institution by way of an order made in the High Court in the Republic of Ireland.
5Re M [2010] EWHC 1926 (Fam) [2012] COPLR 430; Re PA & Ors [2015] EWCOP 38, [2016] Fam 47. It is important to note that, for these purposes, a protective measure includes not just single court orders but also the appointment of a guardian or equivalent by the relevant authorities in the foreign jurisdiction.
26.10Where a measure has been taken on the ground that an adult is habitually resident in any foreign jurisdiction (including, for these purposes, Scotland and Northern Ireland
6By virtue of the definition of ‘country’ given in MCA 2005 Sch 3 para 1.), any interested person can apply to the Court of Protection for a declaration that it is to be recognised in England and Wales.
7MCA 2005 Sch 3 para 20(1). Such an application will almost invariably be accompanied by an application that the measure be declared enforceable here as well.
8MCA 2005 Sch 3 para 22(1). Although neither the MCA 2005 nor (at present) the Court of Protection Rules (COPR) set down any formal procedure by which applications for recognition and enforcement are to be made, they should be made by way of a standard COP1 application,
9As happened in Re MN. and do not require permission.
10MCA 2005 Sch 3 para 20(2). They should be accompanied by full details and – where relevant – a certified translation of the relevant order(s) and any underlying judgment. As noted at the outset of this chapter, it is likely that specific provision will be made within the COPR for such applications, accompanied by a Practice Direction outlining the relevant evidential requirements.
26.11A judge of the Court of Protection asked to recognise and/or declare enforceable a foreign protective measure operates within strict limits. Their role is confined, in essence, to scrutinising whether core procedural and substantive rights have been complied with.
11See Re PA & Ors [2015] EWCOP 38, [2016] Fam 47. They cannot, in particular, conduct their own analysis of where the adult’s best interests may lie, although they can – and must – consider the adult’s best interests in deciding how the measure is to be implemented.
12Re MN at paras 29 and 31; and MCA 2005 Sch 3 para 12.