Senior Court of Protection judge rejects application by Scottish local authority for recognition and enforcement of guardianship order made in Scotland

The Vice President of the Court of Protection has ruled that a guardianship order made in Scotland does not give the local authority power to authorise the deprivation of a man’s liberty in England.

In Argyll and Bute Council v RF [2025] EWCOP 12 (T3) (15 April 2025), Mrs Justice Thesis concluded that the application for “recognition and enforcement” of the 2025 guardianship order should be refused.

The application was brought by Argyll and Bute Council over an order made in Scotland in January this year relating to RF, a man in his sixties.

The judge said: “RF has been living at Z placement in London since December 2023. He was placed there pursuant to powers under a Guardianship order made by the Sheriff Court in June 2021 for three years. There is no issue between the parties that in the Z placement, RF is subject to a deprivation of liberty, he has 2:1 supervision at all times including in the community.”

In May 2024, the local authority issued proceedings in the Court of Protection seeking orders authorising RF's deprivation of liberty.

Following the 2025 guardianship order, the local authority issued an application seeking recognition and enforcement of that order under Schedule 3 of the Mental Capacity Act 2005.

The questions for determination were as follows:

1. Does the 2025 guardianship order give the local authority the power to authorise the deprivation of RF's liberty in England?
2. If so, should the Court of Protection in England and Wales recognise and enforce the 2025 guardianship order?

The guardianship order was made for a period of three years. The order gave the local authority the following powers in relation to RF:

1. To decide where RF should live, to require him to live at that location, to convey him to that location and to return him to that location in the event of him absenting himself therefrom.
2. To decide and approve the appropriate level of care and supervision to be provided to RF to safeguard his health and wellbeing.
3. To decide whether RF should be permitted to participate in holiday, and cultural and social events and if so the nature and extent thereof.
4. To authorise, where necessary and appropriate for the safety and protection of RF and others, any physical restraint including environmental restraint, by care providers who have completed the necessary restraint training provided it complies with all aspects of good healthcare and social care practice.

Outlining the submissions of the parties, Mrs Justice Theis said: “In his submissions Mr Ruck Keene, on behalf of the local authority, realistically recognises the court may have some hesitation about recognising and enforcing the 2025 Guardianship order in accordance with paragraph 19 Sch 3 MCA 2005.

“His primary submission is that the 2025 Guardianship order can be recognised as he submits RF was formally consulted by TY, a mental health officer, when he visited RF in December 2024. Although RF was not able to engage meaningfully in the conversation, he was able to confirm he wished to return to the X area in Scotland and would need support to meet his needs.”

In his written submissions, Alex Ruck Keene KC (Hon) stated that the local authority was "cognisant of the very clear stance of the English courts towards regular reviews of deprivation of liberty (reflecting, in part, the provisions of Schedule A1 to the MCA 2005), and would not seek a declaration that the order be enforceable for more than a year from the date of the Guardianship order” and as a result the local authority “only seek that the order provides for the order to be enforceable in England and Wales until 15 January 2026”.

In the event the local authority application was not granted, he invited the court to give guidance on applications under Sch 3 MCA 2005, to continue the interim orders while the local authority applied for a further guardianship order in light of that guidance, and to make directions for the Sch 3 application MCA 2005 to be returned to and determined by the court.

Counsel on behalf of RF submitted that the court should not recognise the 2025 Guardianship order as the grounds set out in paragraph 19 (3) and (4) Sch 3 MCA 2005 are “both applicable”.

Counsel for RF submitted: “taking all relevant factors into account, the order made in this particular case is so far from compliant with the requirements of Article 5, 6 and 8 that even a limited review must lead to the conclusion that it should not be recognised in this jurisdiction”.

The submissions in relation to paragraph 19(3) set out that it was a feature of the 2025 guardianship order that RF was not joined as a party and no independent advocate or safeguarder was appointed.

Article 5 (1)(e) requires an adult who is being deprived of his liberty to be afforded sufficient effective opportunity to be heard in the course of those proceedings. The judge noted: “The issue to consider is whether that was given.”

The Official Solicitor submitted it was not given as due to RF's circumstances and presentation, the principles set out in MS v Croatia applied.

It was contended that RF needed independent assistance to have “effective access” to the court, and the opportunity of being heard. Therefore, additional steps should have been taken to ensure he was adequately represented.

As regards to paragraphs 19(4) (a) and (b) the Official Solicitor submitted both limbs were established.

The judge noted: “Under the Human Rights Act 1998 the court is a public authority and is bound by the requirements of s6(1) that it is 'unlawful for a public authority to act in a way which is incompatible with a Convention right'. The Official Solicitor submits it is of note that in this case, unlike in SF, the 2025 guardianship order confers the power to authorise the deprivation of RF's liberty on the same public authority (the local authority) that creates RF's confinement. In such a case, the Official Solicitor submits, particular care must be taken to ensure RF's Article 5 right are adequately protected as the need for vigilant scrutiny of the actions and the decisions of the state in this context is particularly intense.”

The Official Solicitor did not support the position of the local authority in seeking recognition and enforcement limited to one year and submitted if the court accepts the grounds under paragraph 19 (3) and (4) are made out, that should be “an absolute bar to recognition and enforcement of the order”.

The Vice-President said: “This is particularly so if the court accepts the wider submissions that there are other grounds in which RF's rights under Article 5 are not protected, independent of the length of time of the order.”

Discussing the case, Mrs Justice Thesis said: “The role of the court in this application is to consider, by way of a limited review in each case where an application for recognition and enforcement is made whether (1) the process whereby the order in question was made, and (2) the effect of that order, afforded sufficient protection for the EHCR rights of the individual who is the subject of the order.”

She noted: “The Official Solicitor's position in this case is the same as it was in SF which Poole J summarised at [18] as follows:

"I note at the outset that it is no part of the First and Third Respondents' case that the process of making guardianship orders in Scotland is systemically defective. The First and Third Respondents have referred me to the Scottish Law Commission's Report on Adults with Incapacity published on 1 October 2014, which recommends amendment of the 2000 Act to include a more detailed legal process for the scrutiny of deprivation of liberty of an adult in a care home or community placement to ensure compliance with ECHR Article 5. The Scottish government published a consultation paper in 2015 but has not yet made any decision as to how to progress the issue. Nevertheless, I am not invited to question whether the guardianship order legislation within Part 6 of AISA 2000 or the Scottish courts' general application of that legislation fails to comply with Art 5, Art 6, or Art 8 Convention rights. I am concerned with the particular SGO, and the process that was adopted to make it, in this case. Whilst I need to consider some of the factual circumstances concerning the making of the SGO, I remind myself that I must conduct a "limited review" as advised by Baker J."

Ms Roper (on behalf of RF) confirmed it was submitted by the Official Solicitor in the SF case on behalf of SF that:

1. It was not contended that the Scottish system was inherently incompatible with Article 5.
2. The "limited review" which the Court of Protection carries out does not require consideration of whether the Scottish system is systemically defective as a whole.
3. Rather, the court should consider, in each case where an application for recognition is made, whether (1) the process whereby the order in question was made, and (2) the effect of that order, afforded sufficient protection for the ECHR rights of the individual who is the subject of the order.

The judge said: “That is also the approach which the Official Solicitor submits this court should adopt when determining whether to recognise the 2025 guardianship order made in respect of RF. I agree.”

She added: “Due to the nature of the 2025 guardianship order, in particular the provisions in it regarding the deprivation of RF's liberty, Articles 5, 6 and 8 require careful consideration.

“There is no dispute in this case that RF's Article 5(1) and (4) rights are engaged as the three key Storck components are present. […] The purpose of Article 5 is to prevent an individual being arbitrarily deprived of their liberty by the State.

“The ECtHR cases emphasise in relation to Article 5(1) the need for someone in the position of RF to have an effective opportunity to be heard.”

Mrs Justice Thesis concluded: “Having considered the relevant Convention rights and the principles outlined above I have reached the conclusion that the grounds in paragraphs 19 (3) and (4) are established in this case and the application for recognition and enforcement of the 2025 guardianship order should be refused.

“In relation to paragraph 19(3) RF was not joined as a party to the application, 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 does not, in my judgment, sit easily with the requirements of Article 5 (1) for an adult who is being deprived of his liberty to be afforded sufficient effective opportunity to be heard in the course of those proceedings.”

Turning to paragraph 19(4), she considered whether recognition of the protective measure would be “manifestly contrary” to public policy (19(4)(a)) or would be “inconsistent with a mandatory provision of the law of England and Wales” (19(4)(b)).

She said: “S 6 HRA 1998 provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. The right under Article 5(4) for a review was determined in Winterwerp at [55] to require a review of lawfulness to be available at reasonable intervals. The 2025 guardianship order made in RF's case was for three years. There is no mechanism in that order for reviews.

“I reject the submissions on behalf of the local authority that the ability of RF to apply to the court under s71(1) AWI 2000, or that RF or someone on his behalf could raise his case with the Commission, meets the rights protected by Article 5(4). In my judgment 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.”

The Vice President continued: “In my judgment, viewed through that lens, recognition of the 2025 Guardianship order would be contrary to the mandatory provision of the law of England and Wales as it would breach Article 5(4) and, as a result, be unlawful under s 6(1) HRA 1998.”

Finally, she added: “I agree with the Official Solicitor that the court should reject the submissions by the local authority of a reduced period of time of one year. Leaving to one side any consideration as to whether it is appropriate at all for this court to recognise and enforce only part of the 2025 Guardianship order, the wider basis upon which this court has determined the grounds under paragraphs 19 (3) and (4) are not met by a reduced time period.”

Mrs Justice Theis rejected the local authority’s application for recognition and enforcement of the guardianship order made in Scotland.

Lottie Winson