Protection sans frontieres

On 4 November 2003 the Scottish Deputy Justice Minister Hugh Henry signed the UK’s instrument of ratification of the Hague Convention on the International Protection of Adults. This was accompanied by a declaration that the ratification would extend to Scotland only. (The full text of the Convention is available on the website of the Hague Conference on Private International Law: www.hcch.net.)

Safeguarding vulnerable adults

The Convention contains rules on jurisdiction, applicable law, and recognition and enforcement of judgments in civil cases involving protective measures for adults with incapacity.

Jurisdiction is generally conferred on the courts of the country where the adult is habitually resident. The courts of the country of which he or she is a national also have jurisdiction, where they consider they are better placed to protect the adult. However, their jurisdiction is not to be exercised without first informing the authorities of the habitual residence, and ceases to apply once those authorities confirm that protective measures have already been taken, that their courts have decided against such measures, or that proceedings are pending. There is a jurisdiction based on presence in cases of urgency, and another based on location of property in relation to which measures are required. The Convention contains a special rule for refugees and the internationally displaced, allowing the courts of the country of refuge to adjudicate.

The applicable law is normally to be the law of the forum, although there is a discretion to take into consideration the law of another country with which the situation has a substantial connection. The law applicable to the validity and interpretation of a power of attorney or similar document is to be the law of the adult’s habitual residence at the time of granting, but there is power to choose an alternative in writing. The permissible alternatives are the law of the nationality, of a former habitual residence or of the place where relevant property is located.

Protective measures taken in one Contracting State will be recognised by operation of law in all other Contracting States. Recognition may be denied only on limited grounds such as public policy, absence of jurisdiction and unreasonable refusal to hear the adult, in violation of fundamental principles of procedure in the requested state. Each Contracting State must provide a simple means of registration of foreign protective measures for enforcement. In Scotland, it is intended that this will be done by summary application to the sheriff court, with the measure then being registered by the Office of the Public Guardian.

A Scottish first

As populations age and societies become increasingly globalised, the need for a comprehensive worldwide instrument to protect vulnerable adults has never been greater. The Scottish legal system has been amongst the earliest to respond to this need. The Diplomatic Special Commission in The Hague which completed the negotiations on the new Convention was chaired by our own Professor Eric Clive. The Scottish Parliament passed the Adults with Incapacity (Scotland) Act 2000, containing provisions to implement the Convention (section 85 and Schedule 3), only seven months afterwards – possibly a record reaction time where an international instrument is concerned. The UK has now become the first state to ratify it, and for the first time has made use of the so-called “federal states clause” to do so for Scotland only. This clause (article 55 of the Adults Convention, and now standard in Hague Conventions) permits states containing territorial units with different systems of law in relation to matters covered by a Convention to ratify selectively for certain of those units. The remaining UK jurisdictions are continuing to work towards implementation of the Convention.

The Convention will come into force three months after the third ratification. In the meantime, the Scottish Executive is happy to respond to requests for information. These should be sent to:

Louise Miller/Laura Mulheron, Scottish Executive Justice Department, 2nd Floor West, St Andrew’s House, Regent Road, Edinburgh EH1 3DG;

Tel 0131 244 4823/4829;

Fax: 0131 244 4848; email: Louise.Miller@scotland.gsi.gov.uk or Laura.Mulheron@scotland.gsi.gov.uk