Aberdeenshire Council v SF & Ors (No. 2) [2024] EWCOP 10

Judgment concerning a Scottish Guardianship Order and whether it authorises the continued deprivation of SF's liberty.

SF is a Scottish woman in her 40s with autism spectrum disorder, severe anxiety, and a schizoaffective disorder. She has been living in England for several years but had previously been ruled to be habitually resident in Scotland. In this judgment Poole J had to consider whether a Scottish Guardianship Order made in 2021 authorises EF, SF's mother, to consent to the deprivation of SF's liberty, and whether the court should recognise and enforce the order. The order had originally been made in 2016 for five years but was extended for a further seven years under Covid laws. SF was not heard at the renewal hearing.

Poole J reviews the legal regime underpinning the Scottish order and the interaction with Sch 3 of the MCA 2005. He then goes on to conduct a limited review of the legality of the existing order as allowed by Schedule 3. He decides at [36] in view of the of the failure for SF to be heard and the length of the term, it would be against public policy to recognise it:    

"Whilst respecting the importance of comity and recognising the differences in the legal framework and jurisprudence as between Scotland, and England and Wales, the failure to uphold SF's fundamental human rights in this particular case means that I should exercise my discretion to refuse recognition of the SGO made in June 2021."

Read the judgment on Bailii