A daughter’s decision to move her 88-year-old mother from England into a Scottish care home gave rise to a complex dispute between her children about the jurisdiction of England’s Court of Protection and our Sheriff Court and also a judicial analysis of the meaning of habitual residence in the light of the 2000 Hague Convention on the International Protection of Adults.

It was agreed between the parties that the mother did not have capacity to decide where to live.

Two statements stand out in the decision:

“Habitual residence is, in essence, a question of fact to be determined having regard to all the circumstances of the particular case.  Habitual residence can in principle be lost and another habitual residence acquired on the same day: … “

“In the case of an adult who lacks the capacity to decide where to live, the habitual residence can in principle be lost and another habitual residence acquired without the need for any court order or other formal process, such as the appointment of an attorney or deputy.”

The court found that the mother was not “habitually resident” in England and Wales and therefore in favour of the jurisdiction of the Sheriff Court.

The full judgement can be found here.