Cross-border deprivation of liberty

A senior Court of Protection judge recently rejected an application by a Scottish local authority for recognition and enforcement of a guardianship order made in Scotland. The Court of Protection team at 39 Essex Chambers analyse the ruling.

In Argyll And Bute Council v RF [2025] EWCOP 12 (T3) (Theis J) RF was habitually resident in Scotland but had been residing in England for a number of years. The issue was whether the Court of Protection under Schedule 3 MCA 2005 should recognise a Scottish guardianship order that authorised RF’s deprivation of liberty for 3 years (although the local authority ultimately sought a recognition period of 1 year only). RF had been subject to a previous guardianship order which granted the local authority wide powers. A further application was made for one in 2025, Theis J noting that, in the lead up to the application, RF had no advocate, was not consulted about the application, “was not joined as a party, nor was a safeguarder or other representative appointed to represent him in the proceedings.” She also noted the extensive powers granted to the Guardian under the 2025 order, which included the power to re decide where RF should live, to require him to live at that location, to convey him to that location and to return him there, as well as to decide and approve the appropriate level of care and supervision to be provided to RF and to authorise, where necessary and appropriate for the safety and protection of RF and others, any physical restraint including environmental restraint.

In considering whether or not the court should recognise and enforce the 2025 Guardianship application, the parties agreed that the relevant test was set out in paragraph 19 of Sch 3 Part 4 MCA 2005, which provides that a court may refuse to recognise a protective measure taken by the country in which the person is habitually resident, on a number of grounds, including sub paragraphs (3) and (4), which provide that:

(3) But the court may disapply this paragraph in relation to a measure [i.e. not recognise it] if it thinks that

(a) the case in which the measure was taken was not urgent,

(b) the adult was not given an opportunity to be heard, and

(c) that omission amounted to a breach of natural justice.

(4) It may also disapply this paragraph in relation to a measure if it thinks that

(a) recognition of the measure would be manifestly contrary to public policy,

(b) the measure would be inconsistent with a mandatory provision of the law of England and Wales, or

(c) the measure is inconsistent with one subsequently taken, or recognised, in England and Wales in relation to the adult.

The Official Solicitor argued that both of these grounds applied.

The key requirements for Article 5 compliance were summarised at paragraph 56:

1. A process for the initial detention which ensures that there is sufficient evidence before the court that the proposed detainee is suffering from a mental disorder, and that this is of a nature and degree necessitating the actual confinement proposed (Art 5(1));
2. Accordingly, evidence to enable the court to consider whether the proposed restrictions are proportionate to the risks to the detainee and/or others if they are not imposed (Art 5(1));
3. An effective opportunity for the proposed detainee to be heard on the application, which may require representation (Art 5(1));
4. An opportunity for speedy review of the confinement by a court, which again may require independent representation for the detainee (Art 5(4));
5. Provision for further regular review by the court at such intervals as is necessary to provide sufficient safeguards for the detainee (Art 5(4));
6. Those reviews should not be dependent on the goodwill of the detaining authority, and should be conducted with up to date medical evidence (Art 5(4));
7. The availability of effective independent representation for the detainee throughout the period of confinement, as an independent check on whether their circumstances may have changed such that the restrictions in place are no longer required to the same degree of intensity, and to support an application to court if one is needed (Art 5(4)).

Theis J concluded that the 2025 Guardianship Order should not be recognised because (addressing each of the relevant parts of paragraph 19):

1. RF was not joined as a party to the application and no independent advocate or safeguarder was appointed to represent him, despite the draconian nature of the orders being sought. RF depended on third parties (a combination of family members, social workers and clinicians) to ensure the Sheriff court had all the relevant information about his circumstances and his views. This procedure was not compatible with Article 5 (1) which required that an adult who is being deprived of his liberty to be afforded sufficient effective opportunity to be heard in the course of those proceedings. As a consequence, the process by which the 2025 Guardianship order was made was not compatible with RF’s Article 5(1) rights, making it unlawful under s6(1) HRA 1998.
2. The previous order lapsed over six months earlier, with no urgency for the present one; not giving RF an effective opportunity to be heard breached natural justice.
3. Separately, and through the prism of the public policy exception under paragraph 19 of Schedule 3, Theis J was concerned that the Guardianship order was to last 3 years with no provision for reviews within that period. Although RF could apply to the court under s71(1) AWI 2000, or RF or someone on his behalf could raise his case with the Commission, RF's Article 5 rights would be 'theoretical and illusory' not 'practical and effective'. There was no mechanism in place to give practical effect to those provisions for RF bearing in mind the basis for the proceedings regarding RF's mental capacity and the lack of any effective review process. That meant that the Guardianship order did not comply with Article 5(4) ECHR. Theis J expressly noted that she reached this conclusion in the context of the maximum one year period in the MCA 2005 for the authorisation of a deprivation of liberty pursuant to Sch A1, para 29(1).

Therefore:

93. […] whilst respecting the importance of comity and acknowledging the differences in the legal framework as between Scotland and England and Wales, in circumstances where I have found that the 2025 Guardianship order was made in breach of natural justice and recognition of it would be manifestly contrary to public policy I should exercise my discretion to refuse recognition of the order.”

Comment

This decision follows that of Poole J in Aberdeenshire Council v SF, EF and Sunderland City Council [2024] EWCOP 10. In the Scottish section of our Mental Capacity Report, Adrian Ward discusses the implications in Scotland. In respect of applications for recognition and enforcement of Scottish orders in England & Wales, applicants would be well advised to ensure that the application complies with Article 5 ECHR in that:

1. The subject matter of the application is properly consulted prior to the application being made.
2. The subject matter of the application is represented on the application.
3. The application is only granted for a maximum 12 month period.
4. The subject matter of the application has practical and effective (as opposed to “theoretical and illusory”) access to a court to challenge any deprivation of liberty imposed upon him/her as a result of the Guardianship order.

This article was written by the Court of Protection team at 39 Essex Chambers.

Alex Ruck Keene KC (Hon) of 39 Essex Chambers, having been involved in the case, has not contributed to this note.