Aberdeenshire Council v SF (No 4) (Residence)
[2024] EWCOP 67 (T3)
Newcastle City Council v LM
16 November 2023
[2023] EWCOP 69
Court of Protection
A young woman with mental health needs lives in Scotland but a UK court decided she's still officially from England because her stay in Scotland is temporary and supervised. The court said she needs help making decisions about things like her care and using social media because she sometimes makes unsafe choices online. They made a plan to help her, including giving her a phone with rules.
Key Facts
- •LM, a 22-year-old woman of Bangladeshi heritage, is habitually resident in England and Wales.
- •LM has a complex diagnosis including complex PTSD, low cognitive function (IQ 73), and a language disorder.
- •LM is currently in a placement in Scotland, subject to interim orders depriving her of her liberty.
- •Newcastle City Council applied to the Court of Protection for findings on habitual residence and LM's capacity in several areas, including internet and social media use.
- •There was significant delay in bringing the matter to a final hearing.
- •The Scottish Central Authority declined to participate in the proceedings.
- •LM's placement in Scotland has been recognised by the Scottish Sheriff's Court.
- •A key issue was whether the Court of Protection retains jurisdiction given LM's residence in Scotland.
Legal Principles
Court of Protection's jurisdiction in cross-border cases is governed by Schedule 3 of the Mental Capacity Act 2005, primarily focusing on habitual residence in England and Wales.
Mental Capacity Act 2005, Schedule 3, paragraph 7
Habitual residence is a question of fact, assessed by considering objective and subjective factors, including reasons for residence and integration into the social and family environment.
The Health Service Executive of Ireland v IM & Ors. [2020] EWCOP 51; Aberdeenshire Council v SF [2023] EWCOP 28; Re LC (Children) [2014] AC 1038
The doctrine of perpetuatio fori does not apply to cross-border incapacity cases; jurisdiction must be established at the final hearing.
Re O (Court of Protection: Jurisdiction) [2014] Fam 197; London Borough of Hackney v P [2023] EWCA Civ 1213
The statutory test for capacity under the MCA 2005 is time and decision-specific, requiring understanding, retention, use, and weighing of relevant information.
Mental Capacity Act 2005, sections 2 and 3; A Local Authority v JB [2021] UKSC 52
Relevant information for capacity decisions varies depending on the matter (e.g., residence, internet use).
LBX v K [2013] EWHC 3230 (Fam); Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP 2
Outcomes
LM remains habitually resident in England and Wales.
Despite her long stay in Scotland, her placement was due to lack of suitable resources in England, and her residence was subject to interim Court of Protection orders. The interim nature of the orders prevented sufficient integration in Scotland to establish habitual residence there.
LM lacks capacity to conduct litigation; make decisions about care and support needs, residence, contact with others, property and affairs, and internet and social media use.
Based on evidence from capacity assessments and expert testimony, particularly the incident of August 9, 2023, demonstrating her inability to understand the risks of online behavior.
It is in LM's best interests to continue residing in her current placement under the updated care plan, and to have access to a smartphone with a social media protocol.
The updated care plan and protocol provide appropriate support and supervision, with ongoing review needed for her capacity to use social media.
Newcastle City Council's authorised officer is appointed as LM's deputy for property and affairs.
Given the significant savings and the potential change of habitual residence to Scotland, it was deemed best to make this appointment while LM remains habitually resident in England and Wales.