Court of Protection judge rules on whether habitual residence of woman lacking capacity was in Scotland or England

The Court of Protection has ruled that a woman who lacks capacity is habitually resident in Scotland - and so subject to a Scottish Guardianship Order - even though she has spent some years at residential facility in Sunderland.

Mr Justice Poole heard the case brought by Aberdeenshire Council over SF, who was represented by the Official Solicitor.

The court heard SF is aged 44 who has been treated in a psychiatric unit and then in supported living for seven and a half years in England.

She has a lifelong diagnosis of moderate intellectual disability, autism spectrum disorder, associated periods of severe anxiety, and a diagnosis of difficult to treat schizoaffective disorder and lacks capacity to conduct litigation and to make decisions about residence and care.

SF is subject to a Scottish Guardianship Order which Aberdeenshire applied to be recognised and enforced in England.

Sunderland City Council, in whose area SF has lived, was concerned that SF was deprived of her liberty in her current placement without lawful authority and applied to bring the matter before the Court of Protection.

In Aberdeenshire Council v SF & Ors [2023] EWCOP 28  Poole J said: “The application is before me to determine the place of SF's habitual residence.

“Once that issue is determined, further directions will be required to resolve the remaining issues in the case.”

Although Aberdeenshire, SF and her mother EF all contended her habitual residence was in Scotland ”the matter is not straightforward”, the judge said.

The court heard SF had spent most of her life in Scotland and all her family was there, but in 2015 she was referred to a psychiatric hospital in England and detained under s3 of the Mental Health Act 1983.

By the end of 2017 SF was considered clinically fit for discharge and Aberdeenshire tried unsuccessfully to find somewhere suitable in Scotland, after which she instead entered a ‘step down’ placement in England with 24 hour care.

SF was made subject to the Scottish Guardianship Order for financial and welfare decisions, which said she was habitually resident in Scotland.

Poole J determined that when the order was renewed in June 2021 “the sheriff must have been satisfied that SF was habitually resident in Scotland and that therefore the court had jurisdiction to make the SGO”.

It followed “there is no power to challenge the finding made in Scotland in June 2021 that SF was habitually resident in that country. There is no challenge to the measure itself.”

The judge added: “In any event, it would be unfortunate for the court to be bound by the finding of habitual residence at a particular point in time for one purpose, but to come to a different finding about habitual residence at that same time for another purpose.

“As it is, I am bound by the finding of habitual residence made by the Scottish court in June 2021.”

Poole J said before the move to England SF “was very well integrated into family life and the social environment in Scotland because she had lived in the community with her family until the deterioration in her condition in her late 20s".

There had been no plan for an indefinite stay in England but “the end goal of transition to a community placement, always expected to be in Scotland, was thwarted due to lack of resources…as long ago as the end of 2017 there has been a continuing expectation of SF returning to Scotland as soon as possible and there are ongoing attempts to secure suitable accommodation and care for her in Scotland to allow her to return there”.

Poole J said: “SF's condition restricts her integration into the social environment wherever she is living. I am however struck by the connections SF still has with her family in Scotland.

“Albeit she has been in England for several years now, her mother, brother and wider family remain in Scotland and she has a degree of integration with them.

“She has no family at all in England. Further, her residence in England has had a temporary nature throughout which, I find, has contributed to depriving her stay in England of a sense of stability.

“The inordinate delay in finding appropriate accommodation and care for her in Scotland has, if anything, underlined the instability of her living arrangements in England.”

Mark Smulian