Judge finds family had “no lawful authority” to move elderly man to care home in Wales from Spain

In A, Re (Habitual Residence) [2025] EWCOP 22 (T2) (10 June 2025), HHJ Richard Millar found that the man’s permanent removal from Spain was “likely to be contrary to his wishes”, as the “overwhelming evidence” was that he was settled in Spain and wished to live there.

A, who has mixed vascular dementia with significant cognitive impairment, was born in Wales but had resided in Spain with his wife, B, for approximately 33 years until April 2024.

In 2018, A experienced a stroke whilst in Dubai on business. He returned to the United Kingdom where he was supported by his son, C.

While in the United Kingdom, he was provided in-patient care at E Hospital. Upon discharge, he returned to Spain.

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The judge noted: “He had been advised to have follow up out-patient treatment in Wales, but his wish was to return to his home.”

A’s health continued to deteriorate in Spain where he received care from health professionals and was diagnosed with vascular dementia. His needs were extensive such that ultimately B felt she was unable to meet them in their home.

The judge noted that the prospect of A receiving professional residential care close to his home in Spain was considered. However, B concluded that as A could not speak Spanish it would be inappropriate for him to be placed in such a facility.

It was considered that A should be placed close to his place of origin with some support from C.

After exploring some options of placements in Neath Port Talbot, it was arranged that he would live at Care Home D.

In April 2024, C flew to Spain and brought his father back with him.

The judge noted that since then, A has “consistently” indicated that he is unhappy at D and wishes to return to Spain.

Considering the issue of habitual residence, the judge said: “There is no dispute about the law. Habitual residence is a question of fact to be determined by a wide range of circumstances of the particular case. It is not a legal concept. The test of habitual residence is ‘the place which reflects some degree of integration by the [child/adult] in a social and family environment in the country concerned’.”

The judge noted it was “not disputed” that A lacked the capacity to make decisions about his residence and care.

He continued: “In my judgment the following reasons lead me to the conclusion that A’s habitual residence is in Spain;

He lived and was settled there for 33 years which is a significant period. I accept that there is no evidence that he wished to or intended to return to Wales to live when he had capacity. He chose to return to Spain following his period of ill health in 2018 whilst still suffering complications;
A was integrated into life in Spain. His permanent home was there. He built a life there over many years. He may not have spoken Spanish to any great extent nor socialised much through choice, but in all other respects his integration was complete;
He had owned property in Spain. He owns no property in England or Wales. It is suggested that he and B lived in rented accommodation from 2011. This is also a significant commitment demonstrating integration into that community. It is a lengthy duration and was settled, stable accommodation;
A established business in Spain;
He held bank accounts in Spain not in the United Kingdom. His finances were operated from those accounts;
He received health care in Spain. His medical notes from E Hospital record that he ‘lives in Spain’;
He obtained residency in Spain;
It is clear A chose to live and make his life in Spain;
A played no part in the decision to move him to Wales. I accept he did not understand he was moving permanently to Wales. It is accepted that he lacked the capacity at the time to make that decision. At all times since he moved to Spain and had capacity to decide, it was A’s settled intention to reside and make his home there;
It was not his decision to leave Spain and move to D. He was taken there;
There is much objective evidence from the records and evidence from his litigation friend that he wished to return to Spain;
Subjectively the evidence is overwhelming that A was settled in Spain and wished to live there.”

Concluding the case, HHJ Richard Millar found that B and C had “no lawful authority” to move A to Wales, and that he was habitually resident in Spain.

While noting that B and C “did not act in bad faith”, the judge observed that A had refused to sign a lasting power of attorney in Spain, “which indicates he objected to others making decisions about him”.

Therefore, his permanent removal from Spain was “likely to be contrary to his wishes.”

Lottie Winson