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Cross-border capacity issues

RE MM (A PATIENT) [2017]

As a background to this cross-border capacity case, P lived in Portugal with his sister. The Court had ordered that P was to return to the UK, where he was from, however his sister disagreed with this Order.

This was an appeal for which the Court had to consider whether the original Order made was a good way of getting him back to the UK. They also had to look at whether returning to the UK was still in P’s best interests.

The outcome of the appeal was that the Order was no longer an effective way of returning P to the UK because of the actions of his sister. In addition, a further assessment would be needed to see if returning to the UK was still in P’s best interests. As such, all the parties compromised and the Order was set aside.

Even though the Order was set aside in this case, the Court wanted to make it clear that they expect any Order that they make to be followed. In this case, the Court had not “caved in” to the demands of P’s sister but could only go so far in getting her to follow the Order they had made.

An approach was suggested by the Judge that should a similar situation arise in the future, consideration should be given as to whether another Country would recognise, or give effect to an Order of the Court of Protection. He also commented that there have been instances where another Country has acted “decisively and speedily” in ordering the return of an incapacitated adult to the UK who had been taken abroad.

For guidance on cross-border matters or for further advice on the Court of Protection, please do not hesitate to contact us on 0800 042 0700 or email us on

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