Aberdeenshire Council v SF & Ors [2023] EWCOP 28

Application to determine the habitual residence of SF who is subject to a Scottish Guardianship Order.

SF is a 44 year old woman from Scotland who had been treated in a psychiatric unit and cared for in supported living in England for seven and a half years. In 2017 it was decided that she was fit for discharge but attempts to find suitable placement in Scotland failed and she moved to a placement in England. The issue before the judge here was a preliminary one concerning enforcement of Scottish Guardianship Order, made in 2016 and renewed in 2021.

Poole J reasons that he is bound to accept that the SF is habitually resident in Scotland, otherwise that order could not be made, but not that she should remain so. He reviews the authorities on the correct approach to determining habitual residence for adults who lack capacity, including DB and EC. He also weighs SF's connection with her family and her living arrangements in England before stating at [22] that he is struck by the connection still has with her family in Scotland, she has no family in England and the temporary nature of her residence in England contributed to a sense of instability. Further that the Scottish court must have found SF was habitually resident in Scotland in June 2021 when renewing the guardianship order was of considerable importance in determining she was habitually resident there.

Read the judgment on Bailii