New case law provides further clarity on the Court of Protection’s jurisdiction over children

The recent case of Irwin Mitchell Trust Corporation Ltd v KS & Ors [2025] EWCOP 7 (T2) has provided clarity regarding the Court of Protection’s jurisdiction over children, whilst discussing the impact of habitual residence on a Deputy’s Property and Affairs authority, and the Court’s jurisdiction, where P relocates abroad.

This case involved a girl, KS who was under 16 years of age. KS had substantial assets in England, following a clinical negligence, managed by a Property and Affairs Deputy appointed by the Court of Protection. KS, however, was no longer habitually resident in England and Wales and resided in India with her family.

The Official Solicitor, on KS’s behalf, argued that the Court of Protection no longer had jurisdiction and that as a consequence, KS’s Deputy ceased to have authority to make decisions on her behalf when she ceased being habitually resident in England and Wales.

Opposing the Official Solicitor’s position, the Deputy argued that the Court of Protection did have jurisdiction. The Deputy stated that they remained authorised to act for KS by way of the Court having the same powers, rights, privileges and authority as the High Court under section 47 of the Mental Capacity Act 2005. The Deputy argued that these powers would include the authority to make orders concerning property in England and Wales, which is held by individuals who lack capacity. Furthermore, the Deputy reasoned that the pragmatic argument could also be relied upon in this scenario, which proposed that the Court of Protection had been determined to be the most appropriate Court to deal with this matter, and KS and her family were happy with the deputyship.

Senior Judge Hilder concluded that the Court of Protection had jurisdiction over children in certain circumstances, using her own analysis, applied to the specific facts of this case.

Senior Judge Hilder stated that KS was within a sub-group of children who were likely to continue to lack capacity to manage their property and affairs once they reached the age of 18. KS, therefore, fell under the jurisdiction of the Court of Protection under section 18(3) of the Mental Capacity Act 2005.

Senior Judge Hilder highlighted that provisions of the 1996 Hague Convention to the 2000 Hague Convention on the International Protection of Adults were set out with the aim to “provide security and continuity for children and their families. Families need not fear that a move to another jurisdiction will, in and of itself, alter the arrangements that have been made”.

Senior Judge Hilder concluded that unless there was an alternative authority identified that could manage KS’s property and affairs, for example the equivalent of an Indian deputyship that could be recognised in England and Wales, it was essential that the Court of Protection and appointed Deputy should continue to act, and she determined that they retained jurisdiction, despite KS having relocated to India and it being accepted that she was habitually resident there. This conclusion would in turn would provide KS with security and continuity in relation to her property and affairs.

Senior Judge Hilder did suggest that, had KS been injured in England and Wales whilst merely on a brief holiday here,  and then returned to India, that may have impacted the outcome of her decision.  However, on the specific facts of this case, jurisdiction was rightfully upheld.