Paragraph 7 of Schedule 3 of the Mental Capacity Act 2005 gives the Court of Protection the power to exercise its functions under the Act in relation to an adult who is habitually resident in England and Wales. It is therefore sometimes necessary for the Court to consider where an adult who lacks capacity is habitually resident. Recently, the Court ruled that a man with significant cognitive impairment who had lived in Spain until his family brought him back to Wales remained habitually resident in Spain.

The man had been born in Wales in 1950, but for about 33 years until 2024 he had lived in Spain, where his wife remained living. In 2018, while in Dubai on business, he had suffered a stroke. He was treated in hospital in the UK but upon being discharged he had returned to Spain. His health continued to deteriorate and he was diagnosed with vascular dementia. He required around-the-clock care.

The prospect of him receiving residential care close to his home in Spain was considered, but his wife concluded that this would be inappropriate as he could not speak Spanish. It was arranged that he would live in a care home close to his place of origin in Wales, and in April 2024 his son flew to Spain and brought him back to Wales. Since then, he had consistently indicated that he was unhappy in the care home and wished to return to Spain.

The Court noted that habitual residence is a question of fact to be determined by a wide range of circumstances of the particular case. The test of habitual residence is the place which reflects some degree of integration in a social and family environment in the country concerned. It has been established that cases under the Act should follow the same approach as cases relating to children.

It was not disputed that the man lacked capacity to conduct the proceedings and to make decisions about his residence and care. The Court observed that he had lived and been settled in Spain for a significant period. There was no evidence that he had wished or intended to return to live in Wales while he had capacity. He had been integrated into life in Spain, had obtained residency there and had established a business there. He owned property and had bank accounts in Spain and not in the UK. It had not been his decision to move to the care home: he had been taken there.

His wife and son had had no authority to move him to Wales. While they had not acted in bad faith, options for care beyond the immediate locality in which he and his wife lived in Spain had not been explored. The Court concluded that he remained habitually resident in Spain.