Aberdeenshire Council v SF (by her Litigation Friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 20 February 2024 |
| Neutral Citation | [2024] EWCOP 10 |
| Court | Court of Protection |
| Docket Number | Case No: 13974361 |
Aberdeenshire Council v SF (No.2)
[2024] EWCOP 10
Mr Justice Poole
Case No: 13974361
IN THE COURT OF PROTECTION
Joseph O'Brien KC (instructed by DWF Law LLP on behalf of Aberdeenshire Council) for the Applicant
Sophia Roper KC and Benjamin Harrison (instructed by Simpson Millar on behalf of the Official Solicitor) for the First Respondent
The Second Respondent not appearing and unrepresented
Victoria Butler-Cole KC (instructed by Sunderland City Council) for the Third Respondent
Hearing date: 8 February 2024
This judgment was delivered in public but a transparency order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the SF, EF, and any members of their family and of where SF is being cared for must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
I am concerned with SF, a Scottish woman in her 40s who has moderate intellectual disability, autism spectrum disorder, associated periods of severe anxiety, and a diagnosis of difficult to treat schizoaffective disorder (bipolar type). In an earlier judgment in this case, handed down on 30 June 2023, Aberdeenshire Council v SF & Ors [2023] EWCOP 28, I held that SF was habitually resident in Scotland, notwithstanding that she had been living in England and Wales for a number of years, first as a patient detained in hospital under the Mental Health Act 1983 and then, since 2022, in a supported living placement in the community. In this judgment I have to consider whether a Scottish Guardianship Order made on 16 June 2021 (the SGO) authorises SF's mother, the Second Respondent EF, to consent to the deprivation of SF's liberty, as she has purported to do, and whether the court should recognise and enforce the SGO as a protective measure in this jurisdiction.
It is agreed, as is clear from the evidence, that SF is not free either to move from her current residence, or to come and go from it. She is subject to physical restraint at times and lives behind doors that may be locked to restrict her movement. She is under the continuous supervision and control of carers. The objective circumstances meet the “acid test” for the deprivation of her liberty set out in the judgment of Lady Hale in Cheshire West v P [2011] UKSC 19. The arrangements that amount to continuous supervision and control are imputable to the state. SF herself is unable, by reason of her mental incapacity, to consent to the arrangements that amount to a deprivation of her liberty. However, the SGO gives power to SF's mother to authorise the arrangements and to consent to the same. If the SGO is recognised in this jurisdiction then SF's deprivation of liberty will have been authorised to date and will continue to be authorised so long as the SGO remains in force. If not, then in the absence of authorisation, her deprivation of liberty will have been unlawful and will continue to be unlawful until either it ceases or lawful authorisation is given.
The questions for determination are:
i) whether the SGO gives EF the power to authorise the deprivation of her daughter's liberty in England;
ii) if so, whether the Court of Protection in England and Wales (“the Court of Protection”) should recognise and enforce this, and if so how it should be implemented;
iii) if not, whether the Court of Protection can, or should, assume jurisdiction over SF's welfare, and to what extent; and
iv) if the Court of Protection does assume jurisdiction, what the next steps should be.
I have received very helpful written and oral submissions from Counsel. Proceedings were originally brought by the Third Respondent, but Aberdeenshire Council has since been made the Applicant. It applies for recognition and enforcement of the SGO submitting that it gives EF the power to authorise the deprivation of SF's liberty in England, and that recognition should follow applying the provisions of the Mental Capacity Act 2005 (MCA 2005) Schedule 3. The First and Third Respondents submit that the court should decline to recognise the SGO by exercising its discretion under MCA 2005 Sch 3, 19(3) and/or 19(4).
The Scottish Guardianship Order
The Adults with Incapacity (Scotland) Act 2000 (AISA 2000) is an Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of adults who are incapable by reason of mental disorder or inability to communicate. Part 6 deals with guardianship orders and s64 provides,
“64 Functions and duties of guardian
(1) Subject to the provisions of this section, an order appointing a guardian may confer on him—
(a) power to deal with such particular matters in relation to the property, financial affairs or personal welfare of the adult as may be specified in the order;
(b) power to deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in the order;”
Applications for guardianship orders are made under AISA 2000 s57. By s58(4),
“Where the sheriff grants the application under section 57 he shall make an order (in this Act referred to as a “guardianship order”) appointing the individual or office holder nominated in the application to be the guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown, he may determine.”
The Act itself is silent as to whether a guardianship order can confer on the guardian the power to authorise the deprivation of an incapacitous adult's liberty but in K v Argyll and Bute Council [2021] SAC (Civ) 21 the Sheriff Appeal Court heard argument on the issue and confirmed that a guardianship order may include such powers. The two contentious powers within the guardianship order in that case were,
“(a) The power to decide where the adult should live, to require her to live at that location, to convey her to that location and to return her to that location in the event of her absenting herself therefrom …
(j) The power to decide where the adult is permitted to go and decide whether or not the adult should be accompanied by a person nominated by her guardian to assist with her personal safety and welfare.”
The Sheriff Appeal Court noted at [21] and [22],
“[21] Before dealing with the provisions of the 2000 Act we think it important to observe briefly on the matter of art.5 which guarantees the right to liberty. The proposed care package at the Oaks is a situation to which art.5 applies. Powers (a) and (j) are contrary to the expressed wishes of the adult. They amount to a deprivation of her liberty and are an interference with her right to choose her place of residence. However the powers were granted in a specific context namely the safeguarding of the welfare of an adult who lacks capacity and whose living conditions, self neglect and lack of personal hygiene are potentially life threatening. The decision to grant these powers is in accordance with a line of existing sheriff court decisions ( Muldoon, Applicant, M, Applicant, and more recently Scottish Borders Council v AB, 2020 S.L.T. (Sh Ct) 41). In each of these cases the courts concluded that intervention leading to deprivation of liberty should not be taken without express statutory authority governing it. This was not contentious.
[22] The statutory authority in the present case, and in the foregoing cases, is the 2000 Act. That Act established a comprehensive system for safeguarding the welfare and managing the finances and property of adults who lack capacity to make some or all of the decisions for themselves.”
Art 5 of the European Convention on Human Rights, to which the Sheriff Appeal Court referred, provides at Art 5(1),
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;”
Art 5(4) provides,
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
In K v Argyll and Bute Council (above), Counsel for the adult submitted that AISA s64(1)(a) and (b) did not allow for a guardianship order to confer the power to authorise the deprivation of the incapacitous adult's liberty. Accordingly, powers (a) and (j) in the guardianship order in question could not lawfully be used to authorise the deprivation of the appellant adult's liberty. Rejecting that submission, the Sheriff Appeal Court held at [28] that,
“We recognise that s.64 does not contain an explicit power to detain but it seems to us that s.64(1)(a) and (b), subject to the application of the principles, may usefully be deployed to address the very sad and unfortunate situation which has arisen here. In effect a detailed and bespoke care package has been created for the adult to address her specific needs. We are satisfied, given the factual matrix, that “a matter” or “all aspects” would cover dealing with the welfare issues of transitioning an adult from one form of care and accommodation (e.g. supported care at home) to another form of care and facility (e.g. care in secure premises), ensuring that the adult remains within the facility to address her needs, and to return her there should...
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