Scottish Sheriff Court Decisions

 

SHERIFFDOM OF LOTHIAN & BORDERS AT SELKIRK   Case Number: AW6/11
	Judgment by   Sheriff T.A.K Drummond, QC   In the cause   AF Applicant   against MS (First Respondent ) and PGS( Second Respondent)       ­­­­­­­­­­­­­­­­­________________

 

 

 

 

AW6/11

AF, Applicant v MS & PGS Respondents

 

 

 

 

Selkirk 20 December 2011: The sheriff having resumed consideration of the cause:-

(First) Sustains the Applicant's First plea in law to the extent following, namely (1) GRANTS Crave 1 of the Application and in terms of the Adults With Incapacity ( Scotland) Act 2000 Schedule 3 Para 8 recognises the Order of the Court of Instance of Cagnes Sur Mer, France, dated 19 October 2010 under Court Reference 10/00232 in relation to the Adult MS ( The Adult) of ( Address) , France and orders that said Order be registered in the Register of International Measures maintained by the Office of the Public Guardian in an Application of the provisions of the Hague Convention on the International Protection of Adults ( 2) Continues Crave 2 of the Application for recognition and registration of the Order of the said Court at Cagnes Sur Mer in relation to the Adult also under reference 10/00232 and dated 7 October 2011 until a date to be afterwards fixed for confirmation that service of said Order has been effected ( Second) Sustains the Applicant's Third Plea in law to the extent following ,namely, (1) Refuses Crave 4 as being unnecessary (2) Grants Crave 5 and Orders that the Power of Attorney granted by the Adult in favour of PGS and AMSO and registered with the Office of the Public Guardian on 19^th November 2010 be revoked and orders that said revocation be intimated by the Sheriff Clerk to the Office of the Public Guardian :

(Third) Refuses the Respondents First, Second, Third, Fourth and Fifth Pleas in Law: Refuses the Respondents Seventh Plea in Law to the extent of Craves 4 and 5; Continues said Seventh Plea in Law to the same date to be afterwards fixed to the extent of Craves 6 and 8 (Fourth) Refuses the Respondents Eighth Plea in Law as being unnecessary and (Fifth) Continues the Respondents Sixth Plea in Law to the same date to be afterwards fixed in respect of Crave 3. Quoad Ultra Continues the Applicant's remaining pleas and Craves to the same date to be afterwards fixed to enable parties to be heard in relation to the remaining pleas and Craves.

 

 

 

 

 

Sheriff.

 

Note: See below.

 

This Note to my interlocutor of 15 December 2010 is provided to the parties on the basis that for the protection of the adult it will be anonymised to ensure that the identity of the Adult and her family will be maintained.

 

 

 

The Application:

 

1. A Summary Application under the Adults with Incapacity (Scotland) Act 2000 ( "the Act ")was lodged at Peebles Sheriff Court on or about 27^th October 2011 at the instance of AF, (Address) Belgium, the daughter of the Adult, craving the court :

 

1.     to recognize and register the order of the court of Instance of 19^th October 2010 in the Register of International Measures maintained by the Office of the Public Guardian pursuant to the request of the Court of Appeal of Aix En Provence in the application of the provisions of the Hague Convention on the International Protection of Adults

 

2. To grant an Order under Schedule 3 Para 8 of the Act recognizing and registering the Order of the Court dated 7^th October 2011 in the same register and on the same basis.

 

3.     To grant a declarator under Schedule 3 Para. 4 of the Act that the law governing the existence etc...of welfare powers of attorney shall be that of France.

4.     To interdict PGS and AMSO from exercising any powers conferred on them by a Power of Attorney granted by the Adult in their favour and registered on 19 November b2010 and for interdict ad interim

5.     To grant an order under Section 20(2) (e) (ii) of the Act revoking the appointment of PGS and AMSO as attorneys to the Adult.

6.     to grant an order under Section 2(2) of the Act (a) ordaining that the continuing attorneys be subject to the supervision of the Public Guardian (b)ordaining them to submit accounts of their intromissions to the Public Guardian (c)ordaining that the welfare attorney be subject to the supervision of the local authority and ordaining the welfare attorneys to report to the sheriff on the exercise of their powers during the period of appointment

7.     to appoint a safeguarder to the adult

8.     to make such order for her protection as appears appropriate

9.     for warrant for intimation to eleven named persons or bodies

10   For expenses in the event of opposition.

 

Accompanying the Summary Application were a number of Productions including certified copies and translations of Orders of French Courts which included the following :-

 

2.On 19^th October 2010 the Court of Instance of Cagnes Sur Mer made an order ( hereinafter referred to as "the Order of 2010") placing Mrs MD ( hereinafter referred to as "the Adult") residing at 84 Avenue Henri Matisse, Residence Pont Royal -06140-Vence, France under Court protection for the duration of the proceedings : it appointed Mrs CS 5 Rue de Suffren-06400- Cannes , as special authorized agent to perform four specified financial powers in relation to the Adult's affairs and it also, inter alia, revoked, if necessary, any prior powers of attorney that would have been given by the person to be protected.

 

3. At Grasse on 19 November 2010 the Public Prosecutor at the Court of Appeal of Aix En Provence, in the Subject of Enforcement of The Hague Convention of January 2000 in the matter of the protection of Adults, averred, inter alia , that an appeal was lodged against the decision to place the Adult under Court protection by a lawyer claiming to act for the Adult, that the Adult was summoned to appear before the guardianship judge on 3 December 2010, that Mrs AMO and Mr. JGS took the Adult by plane to Scotland on 30 October 2010 "to shield her, so it seems, from the protection measures taking place", that the magistrate in charge of adult protection considers he can still keep jurisdiction due to the urgent situation, the spouses usual domicile and initiation of the proceedings pending and invokes the assistance of the Competent Central Authority within the scope of The Hague Convention to ensure the Adult's protection.

 

4. On 7^th October 2011 at Cagnes Sur Mer County Court, Protection of Adults Department , Judge Sabine Maillard , having regard, inter alia, to (i) a medical certificate issued on 23 January 2010 by a named specialist doctor registered on the list drawn up by the public prosecutor, (ii) to a report by the barrister for Mme S, the special representative previously appointed to the Adult (iii) to the failure of the Adult to attend a hearing on 3 December 2010 and (iv) to the opinion of the public prosecutor dated 27^th July 2011 ; Considering, inter alia, that the change in the mental or bodily faculties of the Adult is of a type to prevent the expression of her intentions, that with regard to her state of health the establishment of a court safeguarding measure would turn out to be insufficient; that an enhanced guardianship ( "curatelle renforce") measure appears suitable, Placed the Adult under an enhanced guardianship for a period of 60 months ( hereinafter referred to as "the Order of 2011")and appointed Mme Claude Sellame in the capacity of Guardian ( "curatrice") with the powers thereafter set forth in the Order of the Court and ordered intimation to the persons and bodies named therein. The Adult is designed as "Living at 84 Avenue Henri Matisse Residence Pont Royal 06140 Vence, Resident at 1 Station Bank Peebles EH45 8EJ Scotland."

 

5. The Adult was said to be residing temporarily in Peebles and this court had jurisdiction.

 

 

 

 

Procedural History:

 

I ordered service of the Application on all relevant parties including parties resident abroad and the Office of the Public Guardian.

On 2 November 2011 I appointed Ms Thom, solicitor, as Safeguarder to the Adult in these proceedings and ordered her to report to the court on the present welfare of the Adult.

Answers to the Application were received on 9^th November 2011 on behalf of (1) the Adult (the First Respondent and (2) PGS (the Second Respondent). It was said in both the Application and the Answers that this Application was a matter of urgency.

 

I anticipated hearing parties on their submissions on 30^th November 2011 at Peebles Sheriff Court: that was not able to be done and, having identified in the Application and Answers as they then stood, a potential preliminary issue going to the competency of the proceedings I appended a brief note to the Interlocutor of 30 November setting out my understanding of the proceedings now before me for the assistance of the parties.

In view of the expressed urgency I set the case down for a further hearing at Selkirk Sheriff Court on 15 December 2011.

I dispensed with service on the Scottish Central Authority (SCA) by reason of being informed by the Clerk that SCA were aware of the proceedings and did not seek to enter the process.

 

 

Summarised Factual Background in Terms of the Pleadings

 

The background against which these events take place includes a significant family dispute involving the respective children by previous marriages of the Adult and her husband.

In summary, the Applicant in the case before this court resides in Belgium and is a daughter of the Adult. She, along with her two sisters, is said to have made an application to the Court at Cagnes sur Mer on 1 October 2010 to have the adult placed under the protection of the court. That application followed on a medical report which found that the adult was in need of protection. She is said to suffer from Alzheimer's type dementia.

On 19 October 2010 that Court appointed an independent specialised authorised agent, Mme. S to look after the Adult's relevant affairs. The court revoked all prior Powers of Attorney.

On 7 October 2011 having regard to the content of reports by Mme Sellane, a named specialist doctor and the opinion of the public prosecutor , the court placed the Adult under an enhanced guardianship for a period of 60 months.

 

On 27^th October 2010 an appeal against the order of 19 October 2010 was lodged in France. On 30 October 2010 the Adult travelled to Scotland in the company of one of her step-sons for what was said to be a visit in order " to view " a property in Peebles.

 

On 1 November 2010, the day after her arrival in Scotland, she was apparently in a solicitor's office in Edinburgh where she granted Power of Attorney in favour of her step-son PGS and Another and which was registered with the Office of the Public Guardian on 19 November 2010.

It is said that many of her assets are now in the joint names of herself and her husband.

Neither the Adult nor her solicitor appeared at a Hearing fixed by the court in France on 3 December 2010.

It is said that her daughters are now unable to communicate with her.

It is further said that the Adult is in communication with Mme S both personally and through her notaire in France for the purpose of accessing funds for her daily needs. She is said to have arranged her finances in accordance with her wishes.

 

The Adult is now asserted to be habitually resident in Scotland. On her behalf it is conceded that the court in France had jurisdiction in respect of the Order of October 2010 ("the 2010 Order") by reason if the fact that she was habitually resident there and had been since 1976. It is not conceded that the court in France had jurisdiction for the Order of October 2011("the 2011 Order") because by that time the Adult was said to be domiciled and habitually resident in Scotland. It could not be said when she acquired her domicile of choice in Scotland. It was conceded that she was domiciled and habitually resident in France at the time of the 2010 Order.

 

The Adult has undergone a number of medical examinations since her arrival in Scotland.

 

 

Relevant legislative provisions :

 

Adults with Incapacity ( Scotland) Act 2000

Schedule 3 Recognition and enforcementS

7(1)Any measure taken under the law of a country other than Scotland for the personal welfare or the protection of property of an adult with incapacity shall, if one of the conditions specified in sub-paragraph (2) is met, be recognised by the law of Scotland.

(2)These conditions are-

(a)that the jurisdiction of the authority of the other country was based on the adult's habitual residence there;

(b)that the United Kingdom and the other country were, when the measure was taken, parties to the Convention and the jurisdiction of the authority of the other country was based on a ground of jurisdiction provided for in the Convention.

9(1)For the purposes of recognition or enforcement of a measure taken outside Scotland in relation to an adult, findings of fact going to jurisdiction made by the authority taking the measure are conclusive of the facts found.S

(2)The validity or merits of a measure falling to be recognised by the law of Scotland by virtue of this schedule shall not be questioned in any proceedings except for the purposes of ascertaining its compliance with any provision of this schedule.

"the Convention" means the Hague Convention of 13 January 2000 on the International Protection of Adults.

 

 

CONVENTION ON THE INTERNATIONAL PROTECTION OF ADULTS

(Concluded 13 January 2000)

 Article 22

(1)  The measures taken by the authorities of a Contracting State shall be recognized by operation of law in all other Contracting States.
(2)  Recognition may however be refused -

a) if the measure was taken by an authority whose jurisdiction was not based on, or was not in accordance with, one of the grounds provided for by the provisions of Chapter II;
b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the adult having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;
c) if such recognition is manifestly contrary to public policy of the requested State, or conflicts with a provision of the law of that State which is mandatory whatever law would otherwise be applicable;
d) if the measure is incompatible with a later measure taken in a non-Contracting State which would have had jurisdiction under Articles 5 to 9, where this later measure fulfils the requirements for recognition in the requested State;
e) if the procedure provided in Article 33 has not been complied with.

Article 23

Without prejudice to Article 22, paragraph 1, any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State.

Article 24

The authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction.

Article 25

(1)  If measures taken in one Contracting State and enforceable there require enforcement in another Contracting State, they shall, upon request by an interested party, be declared enforceable or registered for the purpose of enforcement in that other State according to the procedure provided in the law of the latter State.
(2)  Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure.
(3)  The declaration of enforceability or registration may be refused only for one of the reasons set out in Article 22, paragraph 2.

Article 26

Without prejudice to such review as is necessary in the application of the preceding Articles, there shall be no review of the merits of the measure taken.

Article 27

Measures taken in one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State. Enforcement takes place in accordance with the law of the requested State to the extent provided by such law.

 

chapter v - co-operation

Article 28

(1)  A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention on such authorities.
(2)  Federal States, States with more than one system of law or States having autonomous territorial units shall be free to appoint more than one Central Authority and to specify the territorial or personal extent of their functions. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which any communication may be addressed for transmission to the appropriate Central Authority within that State.

 

 

 

Hearing at Selkirk Sheriff Court 15 December 2011

 

The parties appeared before me at Selkirk on 15^th December 2011.

There was lodged at the Bar fresh Answers "as adjusted to 14^th December 2011."

 

Ms.Hood Advocate appeared for the Applicant

Mr.Jansch, solicitor appeared for both Respondents.

Mrs. Thom, Safeguarder for the Adult and

Ms. McDonald as an observer and interested party from the Office of the Public Guardian.

 

 

Respondent's Submissions:

Mr. Jansch opened for the Respondent by conceding that the court in France had jurisdiction in respect of the Order of October 2010 ("the 2010 Order"). It was submitted that that court did not have jurisdiction for the Order of October 2011("the 2011 Order") because by that time the Adult was domiciled and habitually resident in Scotland. He could not say when she acquired her domicile of choice in Scotland. It was conceded that she was domiciled and habitually resident in France at the time of the 2010 Order.

An Appeal was marked against that Order in France and was due to be heard in December 2010. The Adult was unable to attend by reason of being in Scotland and being prevented from travelling by snow.

Her initial intent on travelling here was for a visit. She arrived here on 30 October.

 

The court asked why, if she was travelling here for a visit, she was entering into a Power of Attorney the following day in Scotland especially since the French Order revoked any Powers of Attorney pre-dating the Order of October 2010.

In response it was said that the Order was retrospective only and did not apply to such powers after its date.

I observe that that is not an answer to the question as to why a domiciled Frenchwoman habitually resident in France who had within days previously been placed under the protection of the French Court was thus acting in Scotland on the day following her arrival from France.

 

She was not present in court today because she was not able to travel (to Selkirk from Peebles) and did not wish to travel.

Her wish is that her capacity be recognized by this court and the French Orders be "...done away with..." as it was put.

 

It is competent for a Central Authority to request a transfer of a judicial process: how that should be effected is interpreted differently in France and Scotland.

 

There are good public policy reasons for not granting this application.

Bearing in mind that it was conceded that the 2010 Order was granted by a competent court I enquired if what was being submitted was that there are good public policy reasons why this court in Scotland should not give effect to a competent order of a competent court in France.

It was said that that was indeed the case and I accordingly invited submission as to what those policy considerations might be.

They were enumerated as follows:-

1 The Adult's human rights to the extent that the 2010 Order was pronounced without her having the opportunity to be heard. There was no further specification.

2. The Adults with Incapacity Act and the stance adopted by the Scottish legislature of minimum intervention and where an adult has capacity it is inappropriate to have a regime imposed upon her.

 

In this respect I enquired if the submission was that the 2010 Order should not have been made : it was said that that was indeed the position advanced, that this court should be considering the merits of that Order, the reason for that last proposition being that there was provision in the Hague Convention that on a change of residence the proceedings can be transferred to this jurisdiction, that with the adult now being habitually resident in Scotland the Sheriff should assess the criteria for her future care.

He should do so in the face of live orders from a competent court in France.

 

3. In respect of the Appeal proceedings in France, the Applicant in the present case must satisfy the court that before registration can take place that the Order must be shown to be enforceable in terms of the 2000 Act. In terms of Schedule 3 of the Act there is a distinction between recognition and enforcement: Crave 2 of the Summary Application relates to both recognition and enforcement. Before recognition takes place it must be shown that the order is enforceable. The Court cannot be satisfied on this matter today as to whether or not both Orders referred to in Craves 1 and 2 are both currently enforceable and it was not able to be submitted today what is the state of French Law in respect of suspension of the French Orders as between the 2010 Order and the 2011 Order. It was not able to be said at this point in time what was the effect on the Orders of the lodging of an Appeal.

In response to this last proposition I enquired whether or not the Safeguarder appointed by the court in France was in fact exercising the powers conferred on her by the Orders since it was part of the Respondents pleadings that the Safeguarder was currently remitting funds to the Adult. It was said that it could only be said that the Safeguarder was purporting to exercise such powers: there is no evidence that the Orders are being enforced.

 

4. Habitual residence: domicile is not a relevant consideration. The Applicant's pleadings are unspecific as to how effect could be given to the Orders where the Adult is habitually resident in Scotland. It was emphasized that Mr. Jansch was appearing for the Adult herself and there is a willingness on her part to see an end to this Application and to the French Orders, as it was put.

 

In response to a question from the court it was said that there have been no intromissions whatever under the Power of Attorney granted in this country.

 

5 Capacity. It is a fundamental element of public policy that there should be the minimum intervention in the affairs of the Adult. The court would need evidence to be satisfied that the French Orders were in fact the minimum necessary and in this respect I should ordain the Safeguarder appointed by this court to lodge a written report in process and that the court should assign a hearing for evidence in the proceedings which would require not less that three days.

 

I asked what was submitted should be the attitude of this court to the existing orders of the French Court.

It was said that this court, if satisfied should grant Craves 1 and 2 unless there are public policy considerations which should cause it not to do so or unless there are provisions in the Adults with Incapacity Act which would prevent it. The public policy considerations are based upon Schedule 3 para.7 (3) where it is provided that recognition "may" be refused and in particular subsection.(b) where it would be "...manifestly contrary to public policy to recognize the measure."

It was said that in the present case it would be manifestly contrary to public policy to recognize the Orders.

 

6. The practicalities of public policy in relation to the Craves sought (which I understood to be Craves 6 onwards.)

It was submitted that it is sought to impose French Law on matters raised in this jurisdiction and that the conduct of agents in this jurisdiction be supervised by the office of the Public Guardian. This raises questions of public policy in having the Office of the Public Guardian supervise in accordance with French law: this raises a question of the OPG having to be cognizant of every legal system in existence.

This latter submission was re-phrased as the OPG being able to certify their actings as being appropriate in every jurisdiction. It was submitted that the usual course for an Adult habitually resident in Scotland was to be subject to the reporting requirements of the OPG in accordance with Scots Law.

 

It was submitted that it would be necessary for the court to hear parole evidence in respect of the foregoing headings, that detailed submissions were required and that a timetable should be fixed leading to a hearing which would require to last at least three days.

It was further submitted that the court should make no order of recognition or enforcement of the French Orders pending a full hearing of the issues in this court because this court could not be satisfied on the pleadings that the orders were enforceable and also that they were not contrary to public policy. In addition information was being sought from France which is relevant to a number of the issues relating to enforceability: it is not clear whether the Order of 2011 supersedes the Order of 2010.

 

Further that the current Craves 1 and 2 are premature and no order should be made pending determination of the appeal in France.

I was informed that the appellant was the Adult. By way of background and in response to a question from the court it was explained that the appellant was unable to attend the appeal in France, and that the solicitor who had been instructed was also unable to appear for reasons which were not explained. It was said that the first appeal had probably been refused for want of insistence and that a second appeal remains live.

 

In conclusion it was said that there is nothing before the court which would enable a decision on enforceability or recognition to be made today: with the Adult now living in Scotland the test should be one of minimum intervention and, it was said a timetable had been agreed tentatively between the parties for an evidential hearing of not less than three days. The form of that hearing ought not to be determined or limited today.

 

 

Applicant's Submissions:

Ms. Hood for the Applicant opened by saying that the Applicant had every faith in the French Orders and had grave concern at the chronology and actions which are taking place. Questions arise as to who is instructing this process and we learn today that Mr. S is involved in both proceedings here and in France.

 

The Applicant's submissions were under three headings, namely,

1. Recognition

2. Registration

3. Practicalities of Enforcement.

 

In relation to "recognition" the clear Scheme of the Convention was that the French Orders ought to be recognized: both the Convention and the Act make it plain that a court being asked to recognize a measure cannot attempt to review the merits of the grant of the measure:

Article 26 Hague Convention: "...without prejudice to such review as may be necessary there shall be no review of the measures taken..."

 

Adults With Incapacity Act 2000 : Schedule 3 Para 9(2) "...the validity or merits of a measure to be recognized shall not be questioned in any proceedings except for the purpose of ensuring its compliance with any provision of the Schedule..."

 

Article 24 Hague Convention: The Authority of the requested State is bound by the findings of fact on which the Authority of the State where the measure taken based its jurisdiction..."

 

Adults with Incapacity (Scotland) Act 2000 Sched 3 Para 9(1): For the purposes of recognition or enforcement of a measure taken outside Scotland on an Adult findings of fact going to jurisdiction made by the authority taking the measure are conclusive of the facts found...."

 

It was submitted that a public policy objection cannot allow this court to review the merits of the French decision and it is not appropriate for this court to review the substance of what was done.

The Respondents submission in so far as it is directed towards the principle of minimum intervention is in fact an attempt to reopen the merits. By reference to the translations of the Orders themselves which are produced, it was said that the French court has in effect also made findings of fact which are binding.

It was said that the Adult and those who surround her in the present process have completely failed to engage with the French process.

 

It was submitted that this matter was entirely capable of being dealt with today on the submissions before the court and that it was not appropriate to open issues of fact of the Adult's capacity before this court.

I was referred to Re MN 2010 EWHC 1926 (Fam) Para 26: That was a case involving an elderly lady who had been resident in the USA since after the war, who was now said to lack capacity. On an application by the Public Guardian in California a temporary conservator had been appointed on her estate in July/August 2009. In May 2009 her son who was resident in the UK drove her in his car out of California and eventually brought her to the UK.

Issues before the court included (i) whether and to what criteria the High Court should recognize and enforce an order of a court of competent jurisdiction in California and (ii) a question of enforcement as the order in California was , at the relevant time, stayed and accordingly incapable of enforcement.

At Para No26 the question of public policy was addressed where it was said that "a decision of an experienced court with a sophisticated family and capacity system would be most unlikely ever to give rise to a consideration of....... [manifestly contrary to public policy]: the use of the word 'manifestly' suggests circumstances in which recognition of an order would be repellent to the judicial conscience of the court."

At Para 32 it was observed that (the Adult) ..." could not survive another trip ... [to California] and that "the only way that could be overcome was by asking the court in California to stay implementation."

 

Turning to the question of registration to the extent that it had been submitted that it must be shown that the French Orders are enforceable it was submitted that they are demonstrably enforceable from the pleadings.

She explained that the Applicant is in contact with the French Central Authority and the information provided is to the effect that in relation to the 2011 Order the only outstanding matter is production of evidence of service of the Order on the Adult, her husband and one of the step children.

 

In respect of the Appeal proceedings in France it was said that Mme S, the French Guardian, has not been informed of any suspension of any Order of the French Court and continues to act in that capacity : the Applicant in this case was said to be in contact with the Guardian in France through her French solicitors.

 

My attention was drawn to Schedule 3 of the Act at Para 8.1 to the effect that a measure which is enforceable and which is recognized by the law of Scotland may be recognized in accordance with the Rules of Court.

The only remaining issue in respect of the Order of 2011 is the production of certificates of service. I depart from the submission to note that Mr. Jansch for the Adult intimated to the Court that he has been instructed to accept service. It was said that this is a procedural issue and is clearly distinct from the question of practical enforceability.

 

If the court is satisfied that the order is enforceable and should be recognized, as it should be on the pleadings and submissions before it, there may be further issues of detail which require attention e.g. as to the manner in which registration is effected to ensure protection of the Adult after the information concerning the Adult enters the public domain. I understood this latter point to be no more than ensuring that the identity of the Adult is protected so as to ensure that her personal information does not leave her open to any attempt at fraud upon her. This was said to be secondary to the question of registration by this court.

 

Whether or not there might in the future be a transfer of the process from France is a matter for the French courts.

 

Safeguarder:

Mrs. Thom, the safeguarder appointed by this court intimated that she had lodged in process a Report on the present position of the Adult. That Report played no part in today's proceedings and I authorized that copies of that Report be made available to the parties to this Application.

 

Office of the Public Guardian:

Ms. McDonald, a representative of the Office of the Public Guardian was present throughout the proceedings as an observer. As a matter of courtesy I asked her if she wished to make any representations to the court. She did not wish to do so.

 

Mr. Jansch in response intimated that he has not seen Pro.6 which is the Commentary from the Public Prosecutor in France.

He reiterated his submission that there should be no interim orders made and that this court should assign a timetable for this case and fix an evidential hearing.

 

 

Decision:

 

Having considered the whole Submissions, the pleadings and the Productions I was satisfied that the Order of the Court of Instance at Cagnes Sur Mer of 19^th October 2010 was a measure taken under the law of France for the personal welfare or the protection of an adult with incapacity : that the jurisdiction of the French Court was based upon the habitual residence of the adult within its jurisdiction : that that order is enforceable and is being enforced in the country of origin and accordingly is a measure which shall be recognized by the Law of Scotland , all in terms of Sections 7(1) and (2) and Section 8(1) of Schedule 3 of the Adults with Incapacity ( Scotland) Act 2000 and that the Order should be registered in the Register of International Measures maintained by the Office of the Public Guardian

 

I was further satisfied that to the extent that I have discretion to refuse such recognition in terms of Section 7(3) of Schedule 3 , that it would not constitute a breach of natural justice so to do and nor would it be manifestly contrary to public policy to do so. In reaching that conclusion I echo the sentiments of Hon. Mr. Justice Hedley in Re MN that "a decision of an experienced court with a sophisticated family and capacity system would be most unlikely ever to give rise to a consideration of....... [manifestly contrary to public policy]: the use of the word 'manifestly' suggests circumstances in which recognition of an order would be repellent to the judicial conscience of the court."

 

Having considered the submissions for the Respondent I was satisfied that each of the heads of objection to the recognition of the measure involved to a greater or lesser degree an examination of the merits or the validity of the measure and that such examination is (i) unnecessary for the purpose of ascertaining its compliance with the provisions of Schedule 3 and (ii) is excluded by the terms of Section 9(2) of Schedule 3.

The whole import of the Respondents submissions involved this court in some measure in making a reassessment of the merits of the Orders of the Court in France: this court was invited to give effect to the submissions to that effect by the fixing of a timetable for adjustment of the pleading and assigning three days of proof. I reminded myself that in terms of Article 25 of the Convention "Each Contracting State shall apply to the declaration of enforceability or registration a simple and rapid procedure." I concluded that in the circumstances of this case, to approach the Application in the manner proposed by the Respondent was contrary to both the letter and the spirit of the Convention.

 

In relation to the Order of 7 October 2011 it would appear from the submissions before me that that there might remain outstanding procedural matters relating to service of the order before it can be enforced : I note, however, that the Order of 7 October 2011 proceeds on a preamble that "...having regard to the referral of the application dated 11^th October 2010 for the opening of a protection scheme for the interests of [the Adult] ..." that that Order may be in furtherance of the Order of 19^th October 2010 and I continue these proceedings for the submission of intimation from that court that all French procedural requirements have been complied with and that that Order is enforceable in France.

 

In terms of The Adults with Incapacity (Scotland) Act 2011 Section 20(2) (e) (ii) and ex proprio motu in terms of Crave 5 I revoke the Power of Attorney entered into by the Adult in Scotland on or about 1 November 2011 and intimated to the Office of the Public Guardian. I do so because I am satisfied that the continued existence of such a Power of Attorney in Scotland granted after the Order of 19 October 2010 is inconsistent with that Order and revocation is necessary to ensure the implementation of that Order and for the preservation of the estate of the Adult.

 

I should add that it must be a matter of prima facie concern to any court that an adult, found by a court to be in need of protection, is removed or removes herself from that jurisdiction for a purportedly social reason, enters into a Power of Attorney in another jurisdiction the day after her arrival, asserts a change of domicile and habitual residence in the second jurisdiction, fails to appear or be represented at a Hearing before the original court to address the very matters which are thereafter sought to be reviewed in the second jurisdiction, whilst at the same time proceedings remain live on the original jurisdiction and are the subject of appeal.