Aberdeenshire Council v SF (No.2)

This case involved the Court of Protection's consideration of whether to recognize and enforce a Scottish Guardianship Order (SGO) authorizing the deprivation of liberty for SF, a woman with multiple mental health issues.

TLDR:

• The case concerned the recognition of a Scottish Guardianship Order in England and Wales.
• SF, a woman with intellectual disabilities, was subject to deprivation of liberty under the SGO.
• The Court of Protection examined whether the SGO complied with legal standards and human rights.
• The court ultimately refused to recognize the SGO due to breaches of natural justice and human rights.

The Applicant, Aberdeenshire Council, sought recognition and enforcement of a Scottish Guardianship Order (SGO) made for SF, a woman in her 40s with moderate intellectual disability, autism spectrum disorder, severe anxiety, and schizoaffective disorder. SF had been living in a supported living placement in England since 2022.

The SGO, made in June 2021, authorized SF's mother, EF, to consent to the deprivation of SF's liberty. SF was not free to move from her residence, was subject to physical restraint, and lived under continuous supervision and control. The court needed to determine if the SGO gave EF the power to authorize deprivation of liberty in England and if it should be recognized and enforced in this jurisdiction.

The court received submissions from Counsel, with Aberdeenshire Council arguing for recognition of the SGO under the Mental Capacity Act 2005 (MCA 2005) Schedule 3. The First and Third Respondents opposed recognition, citing breaches of natural justice and human rights.

The court examined the legal framework, including the Adults with Incapacity (Scotland) Act 2000 (AISA 2000) and the MCA 2005. It considered whether the SGO complied with Article 5 of the European Convention on Human Rights, which guarantees the right to liberty and security of person.

The court found that SF was not given an opportunity to be heard during the SGO proceedings and had no representation. The failure to provide SF with an opportunity to be heard amounted to a breach of natural justice. Additionally, the SGO did not include provisions for regular reviews, violating SF's rights under Article 5(4) of the ECHR.

The court concluded that recognizing the SGO would be contrary to public policy and inconsistent with mandatory provisions of the law of England and Wales. It exercised its discretion to refuse recognition of the SGO, emphasizing the importance of upholding fundamental human rights.

The court noted that further steps would be needed to address SF's welfare and habitual residence. The parties were invited to agree on directions for the next steps in the proceedings.

Legal representatives: Joseph O'Brien KC (instructed by Dwf Law Llp LLP) for the Applicant, Sophia Roper KC and Benjamin Harrison (instructed by Simpson Millar) for the First Respondent, Victoria Butler-Cole KC (instructed by Sunderland City Council) for the Third Respondent.

Judicial Panel: Mr. Justice Poole

Case Citation Reference: [2024] EWCOP 10