UK cross-border enforcement: a “rubber stamp” exercise?

A recent English Court of Protection judgment has refused to recognise and enforce a Scottish Guardianship Order in England and Wales, on the grounds that its recognition would amount to a breach of natural justice and would be manifestly contrary to public policy under the Mental Capacity Act 2005.

 

Factual Background

The decision of the Court of Protection in England and Wales in Aberdeenshire Council v SF (2024) EWCOP 10 centres on a Scottish Guardianship Order (SGO) that was granted in relation to a Scottish woman in her forties (referred to as SF) under the powers established by the Adults with Incapacity (Scotland) Act 2000. SF, as described by the Court, has “moderate intellectual disability, autism spectrum disorder, anxiety and schizoaffective disorder” and though habitually resident in Scotland, she had been living in England for a number of years. SF had originally been detained in hospital in England under the Mental Health Act 1983. Since 2022, SF had been living in a supported living placement in the community where, at times, she was subject to physical restraint and was under continuous supervision. In June 2021, the SGO gave SF's mother powers enabling her to authorise SF's living arrangements and to consent to the same. The SGO was granted with a duration of 7 years, expiring in June 2028. The SGO was granted without the opportunity for SF to be heard or to be represented, which was a key consideration for the Court.

Sunderland City Council (subsequently replaced as Applicants by Aberdeenshire Council) sought recognition and enforcement of the SGO in England in accordance with the Mental Capacity Act 2005. The Court of Protection was asked to determine whether the SGO authorised SF's mother to consent to the deprivation of SF's liberty, and if in doing so, the SGO could be defined as a protective measure in England and Wales.

 

The Court Judgment

Mr Justice Poole determined that enforcing the SGO created by Scottish courts in June 2021 would be contrary to public policy and would amount to a breach of SF’s right to natural justice. This decision centred on the discretion afforded by Schedule 3 of the Mental Capacity Act 2005 (on recognition and enforcement in England and Wales), as well as the application of the Human Rights Act 1998 in the Scottish court's decision to grant the SGO.

And English court can exercise its discretion under Schedule 3 of the Mental Capacity Act 2005 to disregard protective measures of another jurisdiction where:

• The measures taken were not urgent;
• The adult was not given an opportunity to be heard; and
• That omission amounted to a breach of natural justice.

Each of these three conditions must be met for the court to refuse recognition. Measures can also be disregarded where it could be determined that recognition of the measure would be manifestly contrary to public policy or it would be inconsistent with a mandatory provision of the law of England and Wales.

Whilst acknowledging the need for only a “limited review” of the Scottish framework for guardianship orders, the Court of Protection found that the SGO was granted in circumstances that were not urgent, and that SF was not afforded the opportunity to be heard or to seek representation, nor was she notified of the proceedings when they were heard in June 2021. Mr Justice Poole went on to determine that this failure to afford SF the opportunity to be heard, and the lack of a review mechanism through the 7-year duration of the SGO, amounted to a failure to ensure that her Article 5(1) rights (the right to liberty and security of person), as set out in the European Convention on Human Rights, were upheld. On that basis, enforcement of the SGO would be unlawful in accordance with the duty placed upon public authorities (including courts) to act compatibly with the Convention Rights.

Mr Justice Poole’s scrutiny of the procedures under which the Scottish court granted the SGO in this case were contrasted with the English court’s decision to uphold a similar Irish protection order (revolving around the case of Health Service Executive of Ireland v Florence Nightingale Hospitals Ltd (2020) EWCOP 12). In that case there was, as can be seen in Aberdeenshire Council v SF, a detailed analysis of the procedure followed by the Irish court, particularly when granting the adult’s access to representation during their hearing, underpinned the Court of Protection’s finding in this case to recognise and enforce the relevant guardianship order.

In Aberdeenshire Council v SF, the Court of Protection ultimately refused to recognise the SGO granted by the Scottish court on the basis that “aspects of the SGO and the procedure under which it was made were contrary to SF's fundamental human rights”.

 

Implications

Practically, the decision of the Court of Protection raises legitimate questions for the scrutiny that can be applied by English courts over Scottish judgments. Whilst acknowledging the “high bar” that must be met before an English court can determine that the court of another jurisdiction has breached the principle of natural justice in line with Article 5 of the European Convention on Human Rights, the Court of Protection's decision in this case demonstrates the discretion that can be exercised by English courts when examining Scottish court procedure through the lens of human rights. Under the backdrop of ongoing discussion on the reform of the Adults with Incapacity (Scotland) Act 2000, this decision presents considerations for courts, local authorities and individuals when seeking to apply SGOs in the wider UK.

As noted in this judgment, recognition of an order of another jurisdiction is not a “rubber stamp exercise” and therefore the procedural steps taken to grant an order in Scotland will fall under the scrutiny of English courts if sought to be relied on in that jurisdiction.

Should you have any questions relating to the cross-border enforcement of Scottish or English orders, please contact our Naomi Pryde.