JM v Mr and Mrs T & Ors

Where an incapacitated adult’s care and residence are in issue, the Family Division may use its inherent jurisdiction to determine what arrangements best serve the adult’s interests. The court may approve a move to another European country where the evidence establishes that the proposed arrangements meet the adult’s medical, social and welfare needs. An English order should define the basis of the decision and any interim arrangements, but should not purport to bind or direct the competent authorities of the receiving country. In an appropriate case involving an advanced European state, the court may assume that the adult will receive at least an equivalent standard of care unless the contrary is established.

The proceedings were brought under the inherent jurisdiction of the Family Division concerning ST, an incapacitated adult suffering from HIV AIDS who lacked capacity to decide matters concerning his care, residence and contact. ST required intensive medical, nursing and general care for the remainder of his life.

Following investigations into ST’s medical, social and welfare needs, and into proposed arrangements in England and Germany, the parties reached a consensus that ST’s interests were best served by moving to Germany. The central issues were whether that conclusion was supported by the evidence and how far an English order could regulate arrangements after ST’s arrival in Germany.

1. Best interests and inherent jurisdiction. The proceedings fell within the inherent jurisdiction of the Family Division concerning an incapacitated adult. The judge, applying English law, was required to determine the issues relating to ST’s medical, social and personal circumstances and to decide what arrangements best served his interests.
2. Assessment of proposed care. The court considered the expert reports and evidence concerning ST’s medical, social and welfare needs, together with the proposed arrangements in England and Germany. The evidence supported the conclusion that ST’s interests would be best served by moving to Germany as soon as possible.
3. Respect for foreign competence. The order was intended to record the basis of the English decision and the arrangements pending ST’s arrival in Germany. It did not bind the German judicial, medical, social welfare or other authorities. Decisions concerning ST after his arrival were within the exclusive competence of the relevant German authorities, and the English court should not interfere with them.
4. Standard of care in another European state. Differences between the English and German systems did not establish that the English system was superior. Given the comparable European legal, medical and welfare context, the court could assume that ST would receive at least the same standard of care in Germany unless the contrary was established.
5. The order dated 20 December 2006 was made on the basis that the move was in ST’s best interests.

Not stated in the judgment.