How do you relocate an individual who lacks capacity to another jurisdiction?

The case of Re UR [2021] EWCOP 10 concerned a 68-year-old woman who had been born in Poland and moved to UK when she was 20.  For the last 9 months had been consistently expressing her wish to leave the UK where she was living in a care home and to return to Poland to her family.

The case set out as a s.21 challenge to DoLS relating to the care home where P was residing, however Mr Justice Hayden’s focus soon turned to the issue of whether it was in P’s best interests to remain in her care home in the UK, or leave the UK permanently to return to Poland.

Mr Justice Hayden concluded that it was in P’s best interest to return to Poland stating that it “broadens P’s social horizons, returns her to her family and relocates her to her homeland”. Mr Justice Hayden hailed the preparation and presentation of this case by the professionals involved as a “beacon of good practice”.  He helpfully generated a useful checklist of the practical issues that should be considered by professionals in similar circumstances:

i. Liaison with the relevant Embassy/ Consulate (in the first instance) to ascertain what guidance and assistance can be provided;

ii. Evidence as to physical health to travel (GP);

iii. Evidence as to mental health to travel (psychiatrist);

iv. Legal opinion regarding citizenship, benefit entitlement, health and social care provision in the relevant country, and such other issues relevant to the case;

v. Consideration of any applications that need to be made as a consequence of any legal opinion provided;

vi. Independent social work evidence regarding the viability of the proposed package of care in the relevant country if such evidence cannot be provided by the parties to the proceedings or a direction under section 49 MCA;

vii. Confirmation of travel costings from the commissioners of the care package, both in relation to P and any carers that may need to travel with them (who will pay?);

viii. Confirmation that the necessary medication/ care will be available during travel from the UK/ for the immediate future in the new country

ix. Transition plan/ care plan, to include a contingency plan and how the matter should return to court in the event of an emergency in implementing the proposed plan;

x. Best interest evidence from the relevant commissioners;

xi. Wishes and feelings evidence;

xii. Residual orders to allow the plan to be implemented, including single issue financial orders regarding opening/closing of UK bank accounts, the purchasing of essential items to travel (if necessary);

xiii. Covid-19 considerations prior to travel (if applicable)

The case was heard in January 2021 and therefore Mr Justice Hayden also had to consider the impact of Covid-19 on P travelling from the UK to Poland. Interestingly, Mr Justice Hayden was clear that P was not prevented from returning to Poland by the restrictions and her carers could also accompany her as they were acting in a “work capacity”.

Important factors also considered were that in this case P had financial wherewithal to fund her own package of care, had a great support network in place and her wish to return home was “striking and unambiguous”.

Although this case concerned an individual habitually resident in the UK – it is still useful for considering situations where P is to return to the UK from abroad. At Anthony Gold we are already utilising Mr Justice Hayden’s checklist in an application to the Court for P to relocate from Switzerland to the UK.