A long road to ratifying

01 May 2013 Richard Frimston

A long road to ratifying

Richard Frimston argues that England and Wales should catch up with Scotland on Hague Convention XXXV.

England and Wales has still not ratified the Hague Convention XXXV of 13 January 2000 on the International Protection of Adults (Convention XXXV), even though Scotland has long done so.

EU member states are being encouraged to ratify and more are doing so. The EU Commission Action Plan of April 2010 implementing the Stockholm Programme refers to the desirability of EU member states acceding to Convention XXXV, and in 2014 the Commission is to report on the need for additional proposals.

I was proud to speak on this issue as chair of the STEP EU Committee at an all-day hearing of the Legal Affairs Committee (JURI) of the EU Parliament in Brussels on 23 January 2013.

Many of the problems in the UK stem from the fact that Convention XXXV has been ratified in Scotland, but not in England and Wales. Although not ratified, nevertheless Convention XXXV is, in effect, in force internally in the courts in England and Wales, but there are no mechanisms to assist, at an administrative level, with its implementation.

Legislative history and background

The private-client consequences of elderly people living in a different state to that of their families are that there are increasing numbers of estates, both during lifetime and on death, with cross-border issues. The conflicts problems for incapacity issues are particularly complex.

Convention XXXV attempts to produce some solutions both to the issues of jurisdiction, applicable law, and recognition and enforcement of court powers, and also to the form and acceptance of lasting powers of attorney across borders.

Professor Eric Clive of Edinburgh University and of the Scottish Law Commission chaired the original 1997 Hague Commission, with members from France, the US, Canada, Denmark and Switzerland, which proposed the wording of the Convention. More detailed information, including the invaluable Report of Professor Lagarde, is available from the Hague Convention website www.hcch.net

Convention XXXV has now been ratified by the Czech Republic, Estonia, Finland, France, Germany, Scotland (by the Adults with Incapacity (Scotland) Act 2000) and Switzerland. It is likely that Ireland will ratify during 2013. Although England and Wales has not yet ratified (and it is not clear when it will do so), South British law, by virtue of Schedule 3 to the Mental Capacity Act 2005(MCA 2005), is virtually identical to Convention XXXV, but with a few differences.

All of the Hague Conventions deal with private international law. Accordingly, they must use generic terminology that can be understood in different jurisdictions. Convention XXXV is no exception. However, the recitals to Convention XXXV affirm that ‘the interests of the adult and respect for his or her dignity and autonomy are to be primary considerations’.

Of necessity, therefore, Convention XXXV does refer to generic terms, such as ‘Adults’, ‘Protective Measures’, ‘Powers of Representation’ and ‘Central Authorities’, each with their own definition under Convention XXXV.

Capacity and incapacity

It is well understood that whether an individual has sufficient capacity is not a question with a binary yes/no answer. ‘Capacity to do what, precisely?’ should be the response. A person may have capacity to marry, but not to manage complex financial affairs or make a valid will.

Similarly, which applicable law may be the correct one to decide the question of capacity will depend on the action for which capacity is needed.

Most states have historically regarded questions of capacity as a matter for the ‘personal law’ of the individual usually governed by the law of the nationality in civil-law states, while by contrast common-law jurisdictions have looked to the individual’s domicile.

Convention XXXV and the schemes of Schedules 2 and 3

The main restrictions on the application of Convention XXXV and Schedule 3 are the exclusions in article 4 of Convention XXXV referred to in Schedule 3, paragraph 33. The full extent and effect of these exclusions relating to maintenance obligations, marriage, dissolution and divorce, matrimonial property regimes, trusts and succession, social security, public health matters, crime, immigration and public safety is not as broad as it may appear on first sight. Study of the Lagarde report is crucial if a matter involves or turns on the precise boundaries of any of these exclusions.

However, since England and Wales has not yet actually ratified Convention XXXV, it must be remembered that although its private international law is virtually identical to Convention XXXV, the cross-border cooperation provisions in Chapter V, article 28 onwards cannot be used, while they can be in Scotland. Similarly, it is not currently possible to obtain a certificate under article 38 in England and Wales, but such a certificate is available in Scotland.

Before ratification, there are also doubts as to the availability of article 7 and 8 requests under Schedule 3, paragraph 8. The Convention has come into existence without any consideration of its administrative needs and consequences.

Private international law always highlights the tensions between the desire for simplicity of rules to establish jurisdiction, applicable law, and recognition and enforcement, together with comity between legal systems, versus the needs for local discretion and public policy issues in hard cases.

David Hill, in his excellent review of Convention XXXV in International and Comparative Law Quarterly(vol 58, April 2009, pp469–476), concluded: ‘The need for legal systems to provide adequate protection for incapacitated adults will undoubtedly become more pressing in the coming years, domestically as well as internationally. The 2000 Hague Convention provides a valuable framework of rules which will promote increased certainty and uniformity within this area. Whilst these rules are not free from criticism, the concerns which exist are of a minor nature and do not strike at the core of the instrument. Indeed the primary challenge is the necessity of extending the Convention regime beyond France, Germany and Scotland.’

Many of us think that it has long been high time for England and Wales to ratify Convention XXXV.

Powers of representation and lasting powers

The problems in relation to enduring, lasting, continuing and durable powers of attorney cross border show where theory and practice can diverge, until further administrative support becomes available.

Convention XXXV refers to ‘powers of representation’, whereas Schedule 3 refers to ‘Lasting Powers’. The only definition in Convention XXXV is in article 15, which refers to ‘powers of representation granted by an adult, either under an agreement or by a unilateral act, to be exercised when such adult is not in a position to protect his or her interests’.

Schedule 3, paragraph 13 (6) defines lasting powers (for the purposes of Part 3 only) as lasting powers of attorney (LPAs), enduring powers of attorney or any other power of like effect.

The law applicable to such a power is either that of the country of the donor’s habitual residence or that of a country of which the donor is a national, in which the donor has formerly been habitually resident or in which the donor has property (but only in respect of that property), if the donor specifies that law in writing and even if that applicable law does not itself recognise such powers.

Many other jurisdictions have forms of powers of attorney that have a like effect to an LPA. These are often called enduring, continuing or durable powers. In some states, such as Germany, subsequent incapacity does not automatically revoke a general power of attorney. It should be remembered that in many jurisdictions, however, marriage or divorce can automatically revoke a power of attorney.

The MCA 2005 directs that England and Wales must now accept such powers if valid under the applicable law as set out in Schedule 3, paragraph 13. In contrast to Convention XXXV, recognition under Schedule 3 applies whether or not capacity may have been impaired.

There appear to be differences of opinion between the Offices of the Public Guardian in Scotland and in England and Wales. There does not seem to be any agreement as to how, in practice, the use of a Scottish power in England and Wales can be enforced by the court. The use of an English and Welsh power in Scotland appears to be easier, although in theory, since it is not possible to obtain an article 38 certificate before ratification, it should be more difficult.

Those of us involved find it impossible to explain to clients why Hague XXXV is not fully in force and available to help in what are usually extremely distressing and stressful circumstances.

Conclusion

If any cross-border issues may be relevant in relation to capacity, careful analysis and thought needs to be applied. It may not be possible to provide clients with a simple and straightforward overall solution. If England and Wales were to ratify Convention XXXV, the position would often be more straightforward. All states should be encouraged to ratify. The UK Ministry of Justice should be ashamed and embarrassed that England and Wales has still not yet done so.

Authors

Richard Frimston

CPD Reflective Learning