Key Facts
- •SF, a Scottish woman in her 40s with moderate intellectual disability, autism, anxiety, and schizoaffective disorder, has been living in England in a supported living placement since 2022.
- •A Scottish Guardianship Order (SGO) was made in June 2021, granting SF's mother (EF) guardianship.
- •SF's liberty is currently deprived, meeting the 'acid test' in Cheshire West v P.
- •Aberdeenshire Council applied for recognition and enforcement of the SGO in England under the Mental Capacity Act 2005 (MCA 2005) Schedule 3.
- •The Official Solicitor and Sunderland City Council opposed recognition of the SGO.
Legal Principles
Deprivation of liberty requires meeting the 'acid test' (Cheshire West v P).
Cheshire West v P [2011] UKSC 19
MCA 2005 Schedule 3 governs recognition of protective measures taken in other jurisdictions.
Mental Capacity Act 2005, Schedule 3
Recognition under Schedule 3 is discretionary; the court may refuse if procedural safeguards are not met (MCA 2005 Sch 3, 19(3), 19(4)).
MCA 2005 Sch 3, 19(3), 19(4); Re PA, PB and PC [2016] Fam 67
AISA 2000 s64 allows guardianship orders to include powers to authorize deprivation of liberty (K v Argyll and Bute Council).
Adults with Incapacity (Scotland) Act 2000 (AISA 2000), s64; K v Argyll and Bute Council [2021] SAC (Civ) 21
Article 5 ECHR guarantees the right to liberty, requiring lawful detention procedures and speedy judicial review (Art 5(1), 5(4)).
European Convention on Human Rights, Article 5
Winterwerp criteria must be met for lawful deprivation of liberty of someone of unsound mind.
Winterwerp v The Netherlands (1979) 2 EHRR 387
Recognition of a protective measure should not be refused solely due to procedural differences between jurisdictions (Re PA, PB and PC).
Re PA, PB and PC [2016] Fam 67
Outcomes
The court refused to recognize the SGO.
The SGO was made without affording SF an opportunity to be heard, breaching natural justice (MCA 2005 Sch 3, 19(3)). Recognition would also be contrary to a mandatory provision of English law by breaching Article 5(4) ECHR (lack of review mechanism) and potentially Article 5(1)(e) (lack of opportunity to be heard).