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Aberdeenshire Council v SF (No 4) (Residence)

21 November 2024
[2024] EWCOP 67 (T3)
Court of Protection
A woman with disabilities is doing very well in her English care home. Her family wants her to move back to Scotland, but the judge decided it's better for her to stay where she is happy and thriving, even though it means seeing her family less often. The judge carefully considered all the options and chose what was best for her overall well-being.

Key Facts

  • SF, a Scottish woman in her 40s, lacks capacity to decide on her residence due to intellectual disability, autism, anxiety, and schizoaffective disorder.
  • SF has lived in a supported living placement in England for over two years, showing significant progress.
  • Two options for residence exist: remaining in her current placement (X) in Northeast England or moving to a new placement (Y) nearer her family in Northeast Scotland.
  • SF's mother (EF) finds it difficult to travel to England to visit, while SF's brother (GF) also lives in Scotland.
  • SF has expressed conflicting wishes regarding her residence, influenced by her family's desire for her return to Scotland.
  • Aberdeenshire Council funds SF's care regardless of location, but the unusual funding of EF's travel to England is not guaranteed.

Legal Principles

Best interests decision-making for individuals lacking capacity.

Mental Capacity Act 2005 (MCA 2005)

Consideration of less restrictive options.

MCA 2005

Factors relevant to best interests assessment (wishes, feelings, beliefs, values, relevant circumstances).

MCA 2005

Weight given to P's wishes and feelings is case-specific.

TW v. Z and others [2009] EWCOP 2525

Court cannot create options not available; must choose between existing options.

Re: A Covert Medication: Residence [2024] EWCA (Civ) 572

Article 8 ECHR rights (right to respect for private and family life) must be considered.

European Convention on Human Rights

Outcomes

SF should remain at her current placement (X) in Northeast England.

While SF desires more family contact and Scotland is her home country, the court prioritizes her current stability and well-being at placement X, where she is thriving. The risk of disrupting her progress and causing distress outweighs the benefits of moving her closer to her family. Although contact with her family will reduce, the court considers this less significant than maintaining SF's current positive life.

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