Aberdeenshire Council v SF & Ors (No 2)

Aberdeenshire Council v SF & Ors (No 2)

The Scottish Guardianship Order was made without SF being given an opportunity to be heard or represented, in non-urgent circumstances, and for a period of seven years without provision for effective review. This amounted to a breach of natural justice and was contrary to mandatory provisions of English law and public policy, specifically Article 5 ECHR as incorporated by the Human Rights Act 1998. Therefore, the Court exercises its discretion to refuse recognition of the SGO in England and Wales.

Parties
Applicant: Aberdeenshire Council; First Respondent: SF (By her Litigation Friend, the Official Solicitor); Second Respondent: EF; Third Respondent: Sunderland City Council
Jurisdiction
England and Wales
Judgment Date
11 October 2024
Procedural Posture
Court of Protection Application for Recognition and Enforcement of a Scottish Guardianship Order / Judgment on Recognition and Enforcement of Foreign Protective Measure
Outcome
Application for recognition and enforcement of the Scottish Guardianship Order refused.
Legal Topics
Recognition of Foreign Protective Measures, Deprivation of Liberty, Guardianship, Article 5 ECHR, Natural Justice, Jurisdiction
Mental Capacity Law Private International Law Human Rights Law Recognition of Foreign Protective Measures Deprivation of Liberty Guardianship Article 5 ECHR Natural Justice +1 more

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Parties

Aberdeenshire Council

Applicant

SF (By her Litigation Friend, the Official Solicitor)

First Respondent

EF

Second Respondent

Sunderland City Council

Third Respondent

Procedural Posture

Court of Protection Application for Recognition and Enforcement of a Scottish Guardianship Order / Judgment on Recognition and Enforcement of Foreign Protective Measure

Legal Issues

  1. 1 Whether the Scottish Guardianship Order (SGO) gives EF the power to authorise deprivation of SF’s liberty in England
  2. 2 Whether the Court of Protection should recognise and enforce the SGO as a protective measure
  3. 3 Whether the SGO was made in breach of natural justice and/or contrary to public policy or mandatory provisions of English law

Ratio Decidendi

The Scottish Guardianship Order was made without SF being given an opportunity to be heard or represented, in non-urgent circumstances, and for a period of seven years without provision for effective review. This amounted to a breach of natural justice and was contrary to mandatory provisions of English law and public policy, specifically Article 5 ECHR as incorporated by the Human Rights Act 1998. Therefore, the Court exercises its discretion to refuse recognition of the SGO in England and Wales.

Court Disposition

Application for recognition and enforcement of the Scottish Guardianship Order refused.

Orders

  • Recognition of the Scottish Guardianship Order dated 16 June 2021 is refused in England and Wales.
  • Parties are invited to agree directions for the determination of further issues regarding SF’s welfare and jurisdiction.