Court of Protection declines to enforce Scottish Guardianship Order for mentally disabled woman living in England

About this case:

• Citation:
  [2024] EWCOP 10
• Judgment:
  External link
• Court:
  England and Wales Court of Protection
• Judge:
  Mr Justice Poole

The SGO was awarded by Aberdeenshire Council on the application of the first respondent’s mother, EF. Proceedings in the case were brought by Sunderland City Council initially but Aberdeenshire Council was later made the applicant, seeking to enforce the SGO in England following the provisions of the Mental Capacity Act 2005.

The application was heard by Mr Justice Poole, with Joseph O’Brien KC appearing for the applicant, Sophia Roper KC and Benjamin Harrison for the first respondent, and Victoria Butler-Cole KC for the third respondent.

Breach of natural justice

SF, the first respondent, was a Scottish woman in her 40s with moderate intellectual disability, autism spectrum disorder, and other mental illnesses. She had been living in England for a number of years, first as a patient detained under the Mental Health Act 1983 and since 2022 in a supported living placement in the community, with continuous supervision and some restriction of her movement. It was noted that, should the SGO not be recognised in England, SF’s living situation and detention would be deemed unlawful.

A guardianship order had been made in respect of SF in 2016, which was due to expire in early 2021 but was automatically extended by coronavirus legislation. A renewed guardianship order with extended powers was granted by a sheriff on 16 June 2021, but SF was not notified of these proceedings and did not attend the hearing. The new SGO was effective for seven years, with an end date of 15 June 2028.

In written submissions, the respondent argued that there was no reason that SF should not have been afforded an opportunity to be heard by the sheriff given the lack of urgency in the making of the order. That omission amounted to a breach of natural justice, especially given the unusually long length of the order, more than double the typical length of an SGO of three years.

It was further argued that the evidence of professionals who had spoken with SF was that it was possible to engage with her when she was having a “good day”. Even if was accepted that discussions about capacity could be harmful to her, no health professional had advised or certified that asking for her views would pose a risk to her.

Beyond reasonable period

In his decision, Poole J began: “Aware of the high bar that should be met before finding that the processes of a court in another jurisdiction breached natural justice, I accept the submissions made on behalf of the Official Solicitor and Sunderland City Council. The case in which the measure was taken was not urgent, SF was not given an opportunity to be heard, and that omission amounted to a breach of natural justice. Therefore, the court has a discretion to disapply MCA 2005 Sch 3 para 19 in relation to the SGO, and to refuse recognition of it in England and Wales.”

Asking whether recognition of the SGO would be contrary to public policy, Poole J said: “In the absence of any representation for SF or any scheduled review, it was likely that the guardianship order would remain in place, without review, for seven years. This was so even when it was known at the time when the SGO was made that SF was considered fit for discharge from her hospital detention. Significant changes in her living conditions were anticipated but no review was provided for when those changes took place.”

He went on to say: “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 concluded: “Not only would recognition be contrary to mandatory provisions of the law of England and Wales, but those breaches of law would relate to fundamental human rights, not only under Art 5, but also under Arts 6 and 8. I have already found that the failure to provide SF with an opportunity to be heard was a breach of natural justice. In the premises, and on the same grounds, it appears to me that it must follow that it would be contrary to public policy to recognise the SGO.”

The parties were thereafter invited to agree suggested directions for the resolution of the other matters raised by the case.