Emma Slattery BL: Ratification of the International Protection of Adults Convention

Emma Slattery BL: Ratification of the International Protection of Adults Convention

Emma Slattery BL

Emma Slattery BL welcomes Ireland’s ratification of an international convention on the protection of adults.

On the 6th June 2024 the Permanent Bureau announced that on the 31st May 2024, Ireland deposited its instrument of ratification of the Convention of 13 January 2000 on the International Protection of Adults. As a result, the Convention will enter into force for Ireland on the 1st September 2024. 

The ratification of the Convention by Ireland makes way for easier co-operation between contracting states. The Convention applies to the protection of adults in international situations who, due to an impairment or insufficiency of their personal faculties, are unable to protect their own interests.

The Convention aims to identify the state with jurisdiction to take protective measures, determine the applicable law, establish the law for the adult’s representation, ensure recognition and enforcement of protective measures in all Contracting States, and facilitate cooperation between the authorities of state authorities.

The convention is already in force in several countries, including Austria, Belgium, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Latvia, Malta, Monaco, Portugal, Switzerland and Scotland. The United Kingdom, having ratified the Convention, made a declaration that the Convention extends to Scotland only.

In preparation for ratification of the Convention, Part 11 of the Assisted Decision-Making (Capacity) Act 2015, which has been commenced, addresses matters related to the private international law of Ireland. The full text of the Convention is set out as a Schedule to the Act. Part 11 applies to individuals who have reached the age of 18. However, if a measure was taken in relation to a person who was under 18 at the time, Part 11 applies to those measures once the person reaches the age of 18.

Article 28 of the Convention requires contracting states to designate a central authority. The director of the Decision Support Service (DSS) is designated as the central authority in Ireland. The central authority’s role includes cross-border cooperation and adult protection. The central authority may request information relevant to adult protection from other Convention countries, and requests for information by a central authority in another Convention country must be communicated through the central authority in Ireland.

When proposing to place an adult in a facility in a Convention country other than Ireland, the central authority in Ireland must consult with the central authority or competent authority in the relevant Convention country. The central authority in Ireland can also request information from another Convention country’s authority. A member of the public or a service provider can contact the central authority in Ireland at psp.centralauthority@mhcirl.ie. The central authority of another contracting state, or if the matter relates to legal proceedings, can contact the central authority at central.authority@mhcirl.ie.

The competent authorities in Ireland — the High Court and the Circuit Court — can exercise their functions under Pt 11 in respect of an adult habitually resident in Ireland, an adult’s property in Ireland (if not conflicting with a Convention country’s measures under arts 5 to 8), an adult present in Ireland or with property in Ireland in urgent cases (subject to art 10 of the Convention), and an adult present in Ireland in temporary and limited cases (subject to art 11 of the Convention). They can also act if the adult is an Irish citizen and art 7 of the Convention is complied with, or if they agree to or request action under art 8 of the Convention after consultation.

One effect of the ratification is that an interested person can apply to the Circuit Court for a recognition declaration in relation to a measure taken under the law of another Convention country. Additionally, an interested person may apply to the High Court or Circuit Court for a declaration on the enforceability in Ireland of a measure taken under the law of a Convention country. This is particularly useful where, for example, an Irish citizen residing abroad lacks capacity and an order has been made in a contracting state that the person should return to Ireland.

While the ratification of the Convention marks significant progress for Ireland and provides very useful rules in terms of recognition, enforcement, and cooperation with contracting states, the absence of its application to our nearest neighbours in Northern Ireland, England, and Wales leaves a significant gap. This gap is compounded by Britain having left the European Union and the introduction of the Act, leaving no established procedure for such recognition, enforcement and cooperation.

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