'Concerning' — Recognition of Scottish orders in England and lessons for practitioners from Argyll and Bute Council v RF

Two key COP judgments on Scottish guardianship orders can help us improve domestic practice, says Mental Health and Disability Sub-Committee member Diane Millen.

In April, the Court of Protection of England and Wales (COP) again refused an application for recognition and enforcement of a Scottish guardianship order (Argyll and Bute Council v RF [2025] EWCOP 12) on the basis that it did not satisfy human rights requirements. This follows a similar refusal in March 2024 (Aberdeenshire Council v SF & Ors (No. 2) [2024] EWCOP 10).

It will be concerning to everyone involved in adults with incapacity (AWI) work in Scotland that another UK jurisdiction now considers two orders of our courts to have fallen so far short of accepted human rights standards that they could not be recognised and enforced in that jurisdiction. While the COP was at pains to emphasise that it is not suggesting AWI law in Scotland is systematically deficient, its analysis in these cases highlights important considerations where a guardianship authorises a deprivation of liberty in terms of Article 5 of the European Convention on Human Rights (ECHR).

The cases of RF and SF

In RF, the adult was subject to continuous 2:1 supervision and control and not free to leave. He was therefore deprived of his liberty in terms of Article 5. There was no evidence RF was not accepting of this arrangement, albeit on a passive basis. The applicant local authority had obtained two guardianship orders, conferring power to decide where he lived and return him there, and to restrain him.

At an earlier stage, RF had briefly had access to an independent advocate. No safeguarder was appointed for RF, nor did he participate as a party in either application. In the second application the mental health officer (MHO) had not sought his views through concern this might cause him distress, and there was no evidence of anyone else having sought his views thereafter. These circumstances were similar to those of SF, whose care arrangements deprived her of her liberty and were consented to by her mother in terms of a guardianship order.

Both adults were being cared for in England. The COP was therefore asked if the Scottish orders conferred power to authorise these deprivations of liberty and if so, whether they should be recognised and enforced.

The COP’s reasoning

The COP did not embark on a fundamental review of Scottish guardianship law. It conducted a “limited review” by considering whether the process by which each order was made, and its effect, adequately protected the person’s rights under the ECHR. It applied the recognition framework in Schedule 3 of the Mental Capacity Act 2005 (MCA 2005). This considers whether the adult was given an opportunity to be heard in the proceedings and if not, whether that omission breaches natural justice. It goes on to examine whether recognition would be “manifestly contrary to public policy” and/or inconsistent with a mandatory provision of the law of England and Wales.

In terms of participation, the COP noted that neither RF or SF had had an independent advocate or safeguarder. They had not been parties to the proceedings – indeed, the application had not been served on SF. In neither case had steps been taken to seek the adults’ views, primarily through concern that this would distress them. Neither adult had been given any meaningful support to participate, and the court had had little or no information about their views before making the orders.

The COP therefore concluded that neither RF or SF had been given an effective opportunity to be heard by the court, in situations where there was no urgency which might justify dispensing with this entitlement. This was a breach of natural justice. The COP commented that measures such as accessing an independent advocate (to which every person with a mental disorder has a right, per Schedule 239 of the Mental Health (Care and Treatment) (Scotland) Act 2003) or appointing a safeguarder would give such adults an opportunity to be heard, as would access to independent legal representation.

The COP went on to consider the public policy aspects. In RF it was particularly critical of the lack of provision for regular review of the order, and thus of the deprivation of liberty it purportedly authorised. It rejected an argument that RF could apply to remove the chief social worker, since he would be unlikely to be able to do this in practice. It highlighted that a right of review is a fundamental aspect of Article 5 compliance, and in light of the three-year duration of the order and RF’s lack of meaningful access to representation, the absence of a review mechanism contravened Article 5 and was unlawful in terms of Section 6 of the Human Rights Act 1998 (HRA 1998).

This echoed SF where a seven-year order had been considered “manifestly beyond a period that could be considered to be reasonable”, especially where SF also had no meaningful or practical route to seeking review of the order. In order to meet Article 5 requirements, the ability to seek review of a deprivation of liberty must be practical and effective for the person concerned, rather than merely theoretical. The COP compared both orders with the maximum one-year period in the MCA 2005 for an order authorising a deprivation of liberty.

Not only did the Scottish measures contravene the domestic law of England and Wales, the COP also considered these breaches of Article 5 to be so significant that it would be contrary to public policy to allow recognition.

Lessons for practitioners in Scotland

Legislative reform of the AWI regime has been long under consideration. However, these COP decisions suggest steps can be taken to improve practice ‘on the ground’ in the meantime. For example, it is good practice to consider whether the orders sought amount to a deprivation of liberty authorisation, so as to highlight this appropriately to the court; to consider the appropriate duration of orders with a view to using renewal as a form of review mechanism; and to highlight the need to seek the views of adults in meaningful ways (eg via an independent advocate and/or a safeguarder).

Many aspects of human rights implementation are outside practitioners’ control, such as law reform, the resourcing of independent advocacy and the availability of legal representation for adults (especially in the current legal aid climate). However, given there is no contradictor in many welfare guardianships, it is appropriate for practitioners to consider what steps they can take to assist the court to discharge its obligations under the HRA 1998.

As such, the challenges and lessons posed by these two important COP cases can help us improve domestic practice, even in cases which are not likely to cross the border.

Written by Dianne Millen, Legal Director, BTO Solicitors and safeguarder, Edinburgh and Glasgow Sheriff Courts. Dianne is a member of the Law Society of Scotland Mental Health and Disability Sub-Committee. She gratefully acknowledges the contributions of the sub-committee to this article.