Aberdeenshire Council v SF (by Her Litigation Friend the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 30 June 2023 |
| Neutral Citation | [2023] EWCOP 28 |
| Court | Court of Protection |
| Docket Number | Case No: 13974361 |
[2023] EWCOP 28
Mr Justice Poole
Case No: 13974361
IN THE COURT OF PROTECTION
Joseph O'Brien KC (instructed by Aberdeenshire Council) for the Applicant
Sophia Roper KC (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: 22 June 2023
SF is a 44 year old woman from Scotland who has been treated in a psychiatric unit and then cared for in supported living for a total of seven and a half years in England. She has a lifelong diagnosis of moderate intellectual disability, autism spectrum disorder, associated periods of severe anxiety, and a diagnosis of difficult to treat schizoaffective disorder (bipolar type). It is not in dispute that she lacks capacity to conduct this litigation and to make decisions about residence and care. She is the subject of a Scottish Guardianship Order which the Applicant Council applies to be recognised and enforced in England. The Third Respondent Council, in whose area SF is currently cared for, was concerned that the SF was being deprived of her liberty in her current placement without lawful authority and made an application to bring the matter before the Court of Protection. In March 2023 Aberdeenshire Council made its application for recognition and enforcement and HHJ Scully ordered that they should become the Applicant and Sunderland City Council should become the Third Respondent.
The application is before me to determine the place of SF's habitual residence. Once that issue is determined, further directions will be required to resolve the remaining issues in the case. All three represented parties contend that SF's habitual residence is in Scotland but the matter is not straightforward. The Second Respondent, EF, SF's mother, was too unwell to attend the hearing and is not represented. I do however have written evidence from her which is part of a very large bundle of evidence. The skeleton arguments from Leading Counsel for this hearing have been extremely helpful.
I am satisfied that, as agreed by the parties, SF lacks capacity to conduct this litigation and to make decisions about her residence and care. A very detailed capacity assessment report dated 27 July 2022 by Dr Ostrowski, Specialist Psychiatrist in Autism, fully supports that conclusion in accordance with the principles set out in the Mental Capacity Act 2005: the presumption of capacity is displaced and the lack of capacity in the respects identified above is proved. The conclusions reached by Dr Ostrowski apply equally today as they did in July 2022.
In relation to the issue of habitual residence, the brief chronology of relevant events is that from her birth until 2007 SF lived with her parents in Scotland. She has an elder brother, GF – he and members of the wider family live in Scotland. Her mother is still alive but her father died in 2022. Following a marked deterioration in her health in 2007, SF was admitted as a hospital in-patient for three months before being discharged back to her parents' home. Over the next three years SF had long in-patient admissions as well as time at the family home but in November 2010 her parents reported that they were unable to manage her behaviour and she was re-admitted to hospital where she remained until discharge to a residential support service in January 2012. In May 2014 she was re-admitted to hospital. By then her behaviour was very difficult to manage – she was physically aggressive to staff and other patients and often required prolonged restraint by four or five members of staff.
In July 2015 SF was referred to a psychiatric hospital (Hospital J) in England and in January 2016 she was transferred to Hospital J under detention under s.3 of the Mental Health Act 1983. By the end of 2017, it was considered that SF was clinically fit for discharge and attempts were made by Aberdeenshire Council to find suitable accommodation and care service providers for her in Scotland. In short, those attempts were unsuccessful. Eventually, in June 2022 SF was moved from Hospital J into a “step down” placement in England. By then, she was on MHA s17 leave which expired on 5 August 2022. Since then, SF has remained at her current supported placement with 24 hour care.
On 1 February 2016, on application by her parents, SF was made the subject of a Scottish Guardianship Order (SGO) for financial and welfare decisions for a period of up to five years. On 16 June 2021, a renewed Welfare and Financial SGO was made for a further seven years. Neither the 2016 nor the 2021 SGO states on its face that the Court (a Sheriff in each case) was satisfied that SF was habitually resident in Scotland. In the application for the 2016 SGO it was stated that SF was habitually resident in Scotland. In the application for the 2021 SGO, SF's parents as the applicants “craved” the court,
“To find that the Adult is domiciled in Scotland, albeit, her current residence is in England. Under Schedule 3 (2) (a) (1) and (2) of the said Act the Adult is a British Citizen and has a closer connection with Scotland than any other part of the UK. The Local Authority, Aberdeenshire Council, have responsibility for her care and all the Adults property is located and administered in Scotland. The Adult's current residence is temporary until she can return to suitable accommodation to meet her needs in Scotland. The Adult's close family are all resident in Scotland.”
The Act referred to in this application was the Adults with Incapacity (Scotland) Act 2000 (AI(S)A 2000). The application referred to Schedule 3 paragraph 2 of that Act, but that provision had no application to SF or the application for an SGO. The relevant provisions as to jurisdiction appear at AI(S)A Schedule 3 paragraph 1 which provides,
1(1) The Scottish judicial and administrative authorities shall have jurisdiction to dispose of an application or other proceedings and otherwise carry out functions under this Act in relation to an adult if—
(a) the adult is habitually resident in Scotland; or
(b) property which is the subject of the application or proceedings or in respect of which functions are carried out under this Act is in Scotland; or
(c) the adult, although not habitually resident in Scotland is there or property belonging to the adult is there and, in either case, it is a matter of urgency that the application is or the proceedings are dealt with; or
(d) the adult is present in Scotland and the intervention sought in the application or proceedings is of a temporary nature and its effect limited to Scotland.
(2) As from the ratification date, the Scottish judicial and administrative authorities shall, in addition to the jurisdiction mentioned in sub-paragraph (1) in the circumstances set out therein, have the jurisdiction mentioned in that sub-paragraph in the following circumstances—
(a) the adult—
(i) is a British citizen; and
(ii) has a closer connection with Scotland than with any other part of the United Kingdom; and
(b) Article 7 of the Convention has been complied with, or if the Scottish Central Authority, having received a request under Article 8 of the Convention from an authority of the State in which the adult is habitually resident and consulted such authorities in Scotland as would, under this Act, have functions in relation to the adult, have agreed to the request.
The power of the Sheriff to make an SGO is provided for by Part 6 of the AI(S)A 2000. Schedule 3 paragraph 1(2) of that Act could not have applied to give the Sheriff jurisdiction to make the SGO in 2021 because Art 7, which is concerned with the provision of notice to or from another contracting state, was not mentioned in the application and was evidently not complied with. The application for the renewed SGO refers to SF's domicile but that is not a relevant concept for the purposes of the 2000 Convention or the AI(S)A 2000. The application is therefore confused. As already noted, neither of the SGOs themselves record a finding that SF was habitually resident in Scotland but I am entitled to assume, and do, that the Sheriff making the SGO in 2021 had found that they were satisfied that they had jurisdiction on the basis that SF was habitually resident in Scotland when they made their order. Unless they were satisfied that SF was habitually resident in Scotland, they would have had no jurisdiction to make the order. I proceed on the basis that the 2021 SGO was properly made and that the Scottish court found that SF was habitually resident in Scotland when it made the SGO on 16 June 2021.
Schedule 3 of the Mental Capacity Act 2005 (MCA 2005), brought into effect by MCA 2005 s63, gives effect in England and Wales to the Hague Convention on the International Protection of Adults 2000, a Convention ratified by the UK but only in respect of Scotland where it is implemented by AI(S)A 2000.
The preamble to the 2000 Convention provides that:
“The State signatory to the present Convention,
considering the need to provide for the protection in international situations of adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests,
wishing to avoid conflicts between their legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of adults,
recalling the importance of international co-operation for the protection of adults,
affirming that the interests of the adult in respect for his or her dignity and autonomy are to be primary considerations,
have agreed on the following...
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Aberdeenshire Council v SF (by her Litigation Friend, the Official Solicitor)
...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 pa......