Summary

This study, produced by the European Parliamentary Research Service, supports a legislative initiative on the protection of vulnerable adults by the European Parliament.

There is currently no uniform legal framework allowing for a proper protection of vulnerable adults in cross-border situations across the European Union (EU). All EU Member States have their own legal framework, with differing tools for the protection of vulnerable adults. This increases legal uncertainties when it comes to cross-border situations.

In order to react to an increase in international mobility and to an ageing population with a growing number of age-related illnesses, such as Alzheimer’s and other forms of dementia, the World Organisation for Cross-border Cooperation in Civil and Commercial Matters negotiated the Hague Convention on the International Protection of Adults 2000 (“Hague 35”), which was designed to protect vulnerable adults in cross-border situations. In essence, it addresses questions such as which law applies and who may represent a vulnerable adult, and with what power. The Hague Convention provides rules on jurisdiction, applicable law and international recognition and enforcement of protective measures. Furthermore, it establishes mechanisms for cooperation between the authorities of Contracting States. However, only seven EU Member States have ratified Hague 35 (Austria, Czech Republic, Estonia, Finland, France, Germany and the UK (in respect of Scotland only)). Another seven EU countries have signed Hague 35 but have not yet ratified it (Cyprus, Greece, Ireland, Italy, Luxembourg, Poland and the Netherlands).  

In 2008, the European Parliament passed a Resolution which encouraged those EU Member States who had not ratified H to date, to proceed with ratification. It is, of course, one of the fundamental principles of the EU that there is freedom of movement and residence for all EU citizens. The world’s population is becoming increasingly mobile especially in retirement. The report identifies a growing trend for northern European wishing to retire in warmer southern European climates. However, adults may become incapacitated or vulnerable at any stage of their lives. Young adults with mental disabilities or injuries, for example, also require protection in cross-border situations whether working, living or holidaying abroad. 

This study reinforces the message to all EU Member States to ratify Hague 35 as a crucial preliminary step. It then goes further by supporting legislative action at EU level aimed at improving the protection of vulnerable adults in cross-border situations (beyond Hague 35) within the EU. The authors of the report consider that, even if all Member States ratified the Hague Convention, there would still be seven weaknesses remaining:  

(i) The limited geographical scope, especially with a view to recognition and enforcement. Hague 35 provides for recognition and enforcement of measures taken in Contracting States only. It does not apply to the mutual recognition and enforcement of protective measures for the protection of vulnerable adults in nonContracting States. Only nine States have ratified Hague 35 so far (seven EU Member States plus Monaco and Switzerland).

(ii) The absence of a supranational court for solving disputes arising from different interpretations of Hague 35. This could lead to different interpretations of the Convention and inconsistent results across the Contracting States. 

(iii) The poor cooperation and communication among the authorities of Contracting States. Providing for cooperation mostly channelled through central authorities designed by the Contracting States, Hague 35 makes only a timid suggestion that authorities “may” get in touch for the purpose of discharging duties under the Convention.

(iv) The difficulty in enforcing foreign protective measures. Measures for the protection of vulnerable adult adopted in one Contracting State must first be declared enforceable as a prerequisite to their enforcement in another Contracting State. 

(v) The weak means by which evidence of the powers granted a representative of a vulnerable adult are to be provided abroad. Hague 35establishes a certificate designed to allow the representative of a vulnerable adult to provide their capacity as a representative in another State. According to Hague 35, the individual Contracting States are to determine the procedural rules under which a certificate is to be delivered. In practice, certificates are very rarely issued which contributes to the legal uncertainty in the representation of a vulnerable adult. 

(vi)The absence of any possibility for an adult to choose in advance the State whose authorities should have jurisdiction over his or her protection. 

(vii) The lack of rules providing for the “continuing jurisdiction” of the authorities of the State of former habitual residence of the adult. Normally, according to the Hague Convention, a change of an adult’s habitual residence from one Contracting State to another involves a change of jurisdiction for the protection of the adult. 

This study recommends five legislative measures at EU level aimed at improving the protection of vulnerable adults in cross-border situations by: 

(i) Enhancing cooperation and communication among authorities of EU Member States. This should ensure frequent and systematic direct communication among the EU Member States’ authorities. Prompt availability of information is likely to enhance the protection of vulnerable adults.

(ii) Abolishing the need for protective measures to be declared enforceable in an EU Member State. This could be developed with appropriate safeguards for the protection of vulnerable adults and would be based on mutual trust among EU Member States enhancing the effectiveness of protective measures taken in EU Member States.  

(iii) Creating a European certificate of powers granted for the protection of an adult. Such a European document would provide a comprehensive legal framework for relevant procedures.

(iv) Enabling the adult to choose the EU Member State whose courts should have jurisdiction to take measures directed at his or her protection. This would allow the authorities of the State of an adult’s former habitual residence to retain jurisdiction for some time following a change in  habitual residence and to modify the existing measures.

The study concludes with a recommendation that the EU should adopt legislative measures based on Article 81 TFEU to address the problems faced by vulnerable adults in cross-border situations and to supplement the framework provided by Hague 35 which does not allow all cases to be dealt with in the best interests of the adult concerned. 

Comment

The recommendations in this study are intended to enhance legal certainty and to harmonise the huge diversity of measures and instructions for the protection of vulnerable adults currently existing across the EU. In order to secure effective and consistent international cooperation, it is often preferable for States to enter into multilateral international instruments rather than individually negotiated bilateral instruments between states. However, like in many other areas of law, the future of the UK’s involvement in European endeavours is looking very uncertain in the wake of Brexit. If the UK ceases to be a member of the EU then it may need to enter into bilateral treaties with each and every other EU Member State to ensure that its decisions would be recognised and enforced in each and every other EU Member State. This could lead to variations across different bilateral instruments for the protection of vulnerable adults and extremely complicated practical matters when multiple instruments apply. It is heartening to see the EU moving towards greater and more consistent protection for vulnerable adults however, quite what the UK’s role will be, is yet to be seen. 

In the meantime, whilst the legal implications of Brexit are still being worked out, different regimes of private international law will continue apply in the UK regarding the cross-border protection of adults. Scotland is a Contracting State to Hague 35 which is implemented by Schedule 3 to the Adults with Incapacity (Scotland) Act 2000. Although England and Wales has not ratified Hague 35, Schedule 3 to the Mental Capacity Act 2005 is built on the same principles as the Convention. There is no suggestion that these provisions will change in the foreseeable future.