Court of Protection finds Scottish Guardianship Order and procedure under which it was made breached human rights of woman in placement in England

A Scottish Guardianship Order (SGO) was made in breach of natural justice and should not be recognised and enforced in England and Wales, the Court of Protection has found.

The case of Aberdeenshire Council v SF & Ors (No. 2) [2024] EWCOP concerned the deprivation of liberty of SF, whose case was brought through the Official Solicitor.

Mr Justice Poole had ruled last June that SF was habitually resident in Aberdeenshire even though she had been living for some years in England, first as a patient detained in hospital under the Mental Health Act 1983 and then in a supported living placement.

SF is in her 40s and has moderate intellectual disability, autism spectrum disorder, associated periods of severe anxiety, and a diagnosis of difficult to treat schizoaffective disorder (bipolar type), the court heard.

This meant she lacked mental capacity to make decisions. Poole J said he had to decide on the validity in England and Wales of an SGO that authorised SF's mother EF to consent to the deprivation of SF's liberty, and whether the court should recognise and enforce the order as a protective measure in its jurisdiction.

The judge said that if the SGO were not recognised in England and Wales, then in the absence of authorisation, her deprivation of liberty would have been unlawful and would continue to be unlawful until either it ceased or lawful authorisation was given.

Poole J heard SF is not free either to move from her current residence, or to come and go from it. She is subject to physical restraint at times and lives behind doors that may be locked to restrict her movement.

He said SF was not heard when the SGO was made “but the relevant question is whether she had an opportunity to be heard” and if she could not do this herself, a safeguarder or advocate could have been appointed to assist.

“In the present case there is no evidence that any attempts were made to ask SF her views about residence, care, freedom of movement, restraint, or decision-making about her life,” Poole J said.

“In my judgment therefore, no opportunity was provided to SF to be heard in the case in which the protective measure was made. Furthermore, having regard to the wide powers granted to the guardians, including authorisation of the deprivation of SF's liberty, and the application of those powers to any future community placement, and given the duration of the order (proposed to be indefinite and made for seven years), the failure to give SF an opportunity to be heard did amount to a breach of natural justice.”

He said those concerned had sought to protect SF's best interests and her parents were suitable guardians but there had been no safeguards for the protection of her Art 5(1) rights.

“Natural justice required that in a case where SF's liberty was being put into the hands of others for a period of seven years, she should have had an opportunity to be heard and/or an opportunity to be represented,” Poole J said.

He said he did not suggest the system for authorising deprivation of liberty under a guardianship order in Scotland was defective but said the arguments put by the Official Solicitor cleared “the high bar that should be met before finding that the processes of a court in another jurisdiction breached natural justice”.

This was because even though “it is not for me, a judge in the jurisdiction of England and Wales, to lay down a maximum period for a Scottish Guardianship Order…given the considerable powers the guardians were being granted, the likely change in living arrangements, and SF's vulnerabilities and her inability to trigger a review herself, and the absence of any representation to do so on her behalf, seven years without ensuring an effective review of the guardianship order was manifestly beyond a period that could be considered to be reasonable”.

Poole J said recognition of the Scottish Guardianship Order “would be contrary to a mandatory provision of the law of England and Wales in that it would breach Art 5(4) of the ECHR and therefore be unlawful under the HRA 1998 s6”. There would also be breaches of articles 6 and 8.

He concluded: “I have found that the Scottish Guardianship Order was made in breach of natural justice and that recognition of it would be manifestly contrary to public policy.

“Whilst respecting the importance of comity and recognising the differences in the legal framework and jurisprudence as between Scotland, and England and Wales, the failure to uphold SF's fundamental human rights in this particular case means that I should exercise my discretion to refuse recognition of the SGO made in June 2021.”

Mr Justice Poole said he had been “very mindful” of the guidance of Baker J in Re PA, PB, and PC  [2016] Fam 67, that Parliament had authorised a system of recognition and enforcement of foreign orders and that it was not his role to refuse recognition purely on the grounds that certain procedures or substantive provisions in Scotland were different from those in England and Wales.

“As noted, no party sought to challenge the Scottish guardianship system itself. However, on the particular facts of this case, important aspects of the SGO and the procedure under which it was made were contrary to SF's fundamental human rights such that recognition should be refused. Schedule 3 [of the Mental Capacity Act 2005] provides an opportunity for the courts of this jurisdiction to carry out a limited review of protective measures made in another jurisdiction. It is not a ‘rubber stamp’ exercise, as this case demonstrates."

The judge said the next steps would have to be carefully worked out. 

“Recent evidence provided to the court appears to show that SF may now be more engaged in outings with staff and interactions within the community, and better able to understand her guardianship and decisions about her residence. Further consideration may need to be given to her habitual residence. In any event, the court does have jurisdiction to make temporary orders even if SF's habitual residence remains in Scotland. Decisions may be made by one or more party to bring SF's case back before the court in Scotland,” the judge said.

For now, within these proceedings, the issues identified at paragraph 3(iii) and (iv) of Poole J's judgment - if the SGO should not be recognised, whether the Court of Protection could, or should, assume jurisdiction over SF's welfare, and to what extent; and if the Court of Protection did assume jurisdiction, what the next steps should be – could not be resolved. The parties were invited to agree suggested directions for the determination of those issues.

Serjeants’ Inn Chambers, whose Sophia Roper KC and Benjamin Harrison acted for the Official Solicitor, said the case was the only reported example of the Court of Protection exercising its discretion to refuse to recognise a foreign protective measure which was made in another jurisdiction within the UK.

Mark Smulian