John McKendrick QC appears in significant international mental capacity proceedings

John McKendrick QC appears in the case of Re AB, to determine whether or not to accede to a mother’s application for the English courts to recognise a foreign protective measure in respect of her incapacitated daughter.

In Re AB [2020] EWCOP 47 the Senior Judge of the Court of Protection, HHJ Hilder was required to apply Schedule 3 of the Mental Capacity Act 2005 (“MCA”) to determine whether or not to accede to a mother’s application for the English courts to recognise a foreign protective measure (a guardianship order made by the New York courts) in respect of her incapacitated daughter. The judge surveyed the case law and statutory provisions and concluded that recognition of the guardianship order would be contrary to public policy, given the circumstances of the mother’s removal of her daughter from New York to England.  The court also found that given the circumstances of the daughter’s removal from New York, she had been wrongfully removed and therefore remained habitually resident in the USA. Accordingly she yielded jurisdiction to the US courts.

This is the first case of a English judge refusing to recognise a foreign protective measure and significantly the judge relied upon public policy arguments albeit she noted the mother’s guardianship order was not itself contrary to public policy.

The judgment can be found here.

This decision follows the judgment of Mr Justice Cobb in respect of how to apply habitual residence to adults. John also successfully appeared before Mr Justice Cobb in this case in December 2019. The judgment can be found here.

John was instructed by Zena Soormally Bolwig of Mackintosh Law.

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John practises in all areas of public and commercial law. To find out more, contact Paul Barton (+44 (0)20 7353 6381) for a confidential discussion.

News 20 Oct, 2020