FT v MM & Anor

In proceedings concerning a vulnerable adult, habitual residence is assessed by reference to all the circumstances existing at the time of assessment. The doctrine of perpetuatio fori does not prevent habitual residence changing during proceedings. Where an adult has lived for a substantial period in another country, has a settled life there and receives appropriate care, the court may conclude that jurisdiction has changed notwithstanding an earlier wrongful removal.

The court should not make futile coercive orders, particularly where return would expose the vulnerable adult to uncertainty, inadequate accommodation or harm. If jurisdiction is no longer appropriate, and another forum can address the adult’s welfare, proceedings should end or be transferred in practical terms to that forum.

FT sought orders requiring the return of her nineteen-year-old son, RM, from Texas to England. RM had profound learning disabilities and lacked capacity. His father, MM, had removed him from England in 2016 without the court’s authorisation. Earlier family proceedings had restricted FT’s contact and imposed a permission requirement on further applications.

The issues were whether the English proceedings should be stayed or jurisdiction ceded to Texas, whether existing return orders should be varied or discharged, whether RM could practically be returned, and whether a freezing order should continue. The Official Solicitor ultimately supported RM remaining in Texas, where he was receiving medical, educational and social care.

1. Habitual residence. Following JO v GO & Ors [2013] EWCOP 3932, the determination of an incapacitated adult’s habitual residence required assessment of all circumstances as they existed at the time of assessment. The doctrine of perpetuatio fori had no application. The same approach applied in the context of Schedule 3 to the Mental Capacity Act 2005 and in the exercise of the inherent jurisdiction.
2. Although RM’s removal had initially been wrongful, he had lived in Texas for more than two years, had reached majority, and had a settled life there with access to medical, educational and social care. The evidence was sufficient to establish that he was habitually resident in the USA.
3. Alternative forum. If that conclusion were wrong, Texas was the more appropriate forum. The Texan authorities were engaged, guardianship proceedings had been initiated, and information about RM’s welfare could be pursued there. The English court lacked a realistic mechanism for securing his return.
4. Futility and welfare. Applying the principle discussed in Re MM (A Patient) [2017] EWCA Civ 34 and Re Jones, the court would not make futile coercive orders. Return would expose RM to an uncertain placement and likely emotional harm, and would not serve his best interests.
5. Nationality and jurisdiction. The position differed from Al-Jeffery v Al-Jeffery (Vulnerable Adult: British Citizen) [2016] EWHC 2151. RM was a US national, so once habitual residence had changed there was no obvious continuing protective jurisdiction based on nationality. The proceedings would therefore end, with no Court of Protection proceedings or further directions.

First-instance proceedings in the High Court (Family Division). The judgment records earlier family proceedings and orders, including an unappealed 2006 order and a 2015 order which was not appealed, but no appeal from the present decision.