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Woman in family-at-war saga loses legal battle
7:30pm Wednesday 8th January 2014 in News
A WOMAN at war with her siblings over where their elderly mother should live has suffered a setback in her legal fight to have the pensioner returned to England from Scotland.
The 88-year-old mother, who cannot be identified, was taken from her home in Worcestershire to live with one of her two sons in Scotland, and moved to a nearby care home a short while later.
The move was backed by her other son and one of her two daughters, but the other challenged the decision – arguing her mother had been 'wrongfully removed' from her home and should be returned. But she was dealt a blow as the most senior family judge in England and Wales ruled that the Scottish courts should decide her mother’s fate.
Sir James Munby, president of the Family Division, said the mother’s move to Scotland was “not a kidnapping”, but was done “reasonably and sensibly” by three of her four children, in what they saw as her best interests. The judge said the pensioner – who lacks mental capacity to make her own decisions – had lived in her own home with a combination of family support and care from social services, but was moved to live with her son in Scotland early last year.
A short while later she moved into a care home, in an area which Inverclyde Council were responsible for, and was later placed under the guardianship of the local authority’s social services department by the Sheriff Court in Scotland.
Her daughter launched proceedings at the Court of Protection, in London, in a bid to have her mother returned – putting her at loggerheads with her three siblings, who all supported the council’s view that the mother was no longer “habitually resident” in England.
Lawyers for the woman argued that her mother was “wrongfully removed” from England.
But the council’s lawyers argued that this was not a case of “adult kidnapping” and said the evidence indicated the mother was now settled in her Scottish care home and was not expressing a desire to return either to her own home or to Worcestershire.
Rejecting the daughter's case, Sir James said: “This was not a kidnapping. It was not some high-handed action, undertaken for some ulterior motive. It was, on the contrary, something reasonably and sensibly undertaken by, or in agreement with, three of the mother’s four children in what they saw as her best interests.
“They had authority – the authority conferred on them by the doctrine of necessity – to act as they did, and the fact that their sibling was of a different opinion did not rob them of that authority."
The judge concluded that the English court did not have jurisdiction and should not intervene in the case, and said the Scottish court should determine the outstanding issue of what should happen to the mother's house in England.