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	England and Wales Court of Protection Decisions
You are here: BAILII >> Databases >> England and Wales Court of Protection Decisions >> Argyll and Bute Council v RF [2025] EWCOP 12 (T3) (15 April 2025) URL: https://www.bailii.org/ew/cases/EWCOP/2025/12.html Cite as: [2025] EWCOP 12 (T3)

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IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 April 2025

Mrs Justice Theis DBE:

Introduction

1. This is an application dated 31 January 2025 by Argyll and Bute Council (the local authority) for recognition and enforcement of a Guardianship order made in Scotland on 16 January 2025 for three years relating to RF (2025 Guardianship order). RF is a party and represented in this application by the Official Solicitor as his litigation friend. The Official Solicitor opposes the application.
2. RF has been living at Z placement in London since December 2023. He was placed there pursuant to powers under a Guardianship order made by the Sheriff Court in June 2021 for three years (2021 Guardianship order). There is no issue between the parties that in the Z placement, RF is subject to a deprivation of liberty, he has 2:1 supervision at all times including in the community. The local authority issued proceedings in the Court of Protection in May 2024 seeking orders authorising RF's deprivation of liberty. Within those proceedings the Official Solicitor was appointed RF's litigation friend. Following the 2025 Guardianship order the local authority issued an application seeking recognition and enforcement of that order under Schedule 3 of the Mental Capacity Act 2005 (MCA 2005).
3. There is no issue between the parties that the court has reason to believe, for the purposes of section 48 (MCA 2005) that RF lacks capacity to conduct these proceedings, and to make decisions about his residence and care and support.
4. The questions for determination are:

(1) Does the 2025 Guardianship order give the local authority the power to authorise the deprivation of RF's liberty in England?

(2) If so, should the Court of Protection in England and Wales recognise and enforce the 2025 Guardianship order?

5. The court has had the benefit of detailed written and oral submissions on behalf of the local authority by Mr Ruck Keene KC (Hon) and Ms Gardner, and on behalf of the Official Solicitor by Ms Roper KC and Mr Harrison.

Relevant Background

6. RF is 64 years old. He was born and raised in the X area in Scotland and the local authority is responsible for meeting RF's social and welfare needs. His father and two siblings still reside in that area.
7. About 30 years ago RF was involved in an accident following which it is reported his behaviour became more volatile although medical investigation did not establish any brain injury arising from the accident. The combination of this incident and the loss of a sibling resulted in RF exhibiting severe dysregulated behaviour from a young age.
8. Since 1988 RF has accessed psychiatric interventions to manage his mood swings. He was admitted to hospital on a voluntary basis in 2008 and was diagnosed with clinical depression.
9. An incapacity report in December 2024 suggests RF has a cognitive impairment. An incapacity report a week later suggests RF has a learning disability and a personality disorder.
10. Due to RF's increasing difficulty in living in the community the local authority undertook a number of assessments.
11. In March 2021 an application was made for a Guardianship order, which was granted by the Sheriff Court in Scotland on 3 June 2021 (2021 Guardianship order). The Chief Social Work Officer for the local authority was appointed as RF's Guardian in respect of welfare matters and a local solicitor was appointed RF's Guardian in respect of his finances. The welfare powers included the power to decide where RF 'should live, to require him to live at that location, to convey him to that location and to return him to that location in the event of him absenting himself therefrom'.
12. The 2021 Guardianship order was made for a term of three years and expired in June 2024. No application was made to renew the order at this time. It is understood this is because RF was placed in England, and by this time the application had been made to the Court of Protection for authorisation of RF's care arrangements.
13. The COP1 is dated 28 May 2024, and seeks permission to bring the application and to seek authorisation of RF's deprivation of liberty at Z placement. On 29 May 2024 DDJ Kaufman: made a transparency order, gave permission for the application to be made under s 50 (2) MCA 2005; made an interim declaration as to capacity under s48, that RF lacked capacity to conduct the proceedings and make decisions about where he should live and the care that he should receive; made directions including inviting the Official Solicitor to act as RF's litigation friend; and listed the matter for a hearing on 21 June 2024.
14. In July 2024, the Official Solicitor having raised the issue of RF's habitual residence, the proceedings were allocated to HHJ Hilder to determine that issue as a preliminary matter.
15. On 20 January 2025 HHJ Hilder made orders by consent in which the court determined that RF's habitual residence remained in Scotland, pursuant to paragraph 7(d) Sch 3 MCA 2005, authorised the deprivation of RF's liberty, at the Z placement on a temporary basis, and gave directions for determination of the local authority's anticipated application for recognition and enforcement of the 2025 Guardianship order referred to below.
16. During the currency of the Court of Protection proceedings the local authority decided to make a further application for Guardianship, which it did on 18 December 2024. The order was granted on 16 January 2025 for a period of three years (2025 Guardianship order). That order appointed the Chief Social Work Officer for the local authority as RF's Guardian in respect of welfare matters, including to decide where RF should live and 'the power to authorise, where necessary and appropriate for the safety and protection of the Adult and others, any physical restraint, including environmental restraint, by care providers who have completed the necessary restraint training provided it complies with all aspects of good healthcare and social care practice'.
17. On 31 January 2025 the local authority made a COP9 application seeking recognition and enforcement of the 2025 Guardianship order under Sch 3 MCA 2005.
18. On 10 February 2025 I made directions providing for the application to be served on the Department for Justice and Home Affairs (Scottish Government), Department of Health and Social Care (Scottish Government), the Office of the Public Guardian Scotland and the Mental Welfare Commission for Scotland. Notification having been given to each of these bodies the Scottish Government has asked to be informed of the outcome.
19. The court heard oral submissions on behalf of the local authority and the Official Solicitor on 1 April 2025 and reserved judgment.

The evidence

20. The statement filed by AB, solicitor for the local authority, outlines the history of the 2025 Guardianship application.
21. An independent advocate was appointed to represent RF at the Adults with Incapacity Case Conference that took place in February 2021. This meeting was convened as the social work team considered an intervention under the Adult with Incapacity (Scotland) Act 2000 (AWI 2000) might be required. The advocate spoke with RF prior to the meeting and filed a report. From that report, whilst RF did make comments about his situation he was not asked whether he would like the local authority to be appointed his welfare Guardian. There is no reference to the advocate being any further involved.
22. AB's statement sets out that VJ, a local authority mental health officer, visited RF in late February 2021 to obtain his views on the Guardianship application. The report refers to RF being focussed on being admitted to hospital. The incapacity reports in February and March 2021 do not record the specific questions and discussions with RF. There is no formal diagnosis of mental disorder in either report. The February 2021 report refers to 'head injury following RTA leading to marked functional and behavioural impairment', and the March 2021 report records 'behavioural and functional impairment, self-neglect, lack of insight'.
23. The original plan behind the Guardianship application had been to move RF to a specialist care home for brain injury patients; when that proved not to be possible without a formal diagnosis the plan was changed to a general care home. That plan was further amended when he was admitted to hospital in March 2021.
24. RF was served with the amended application in early May 2021 after he had moved to the general care home. AB wrote to the Sheriff's court stating that she did not expect the application to be opposed as 'the nearest relative and others involved with the adult are in favour of the application being granted'. A final order was made on 3 June 2021 granting the local authority extensive powers including the power to decide where RF should live, convey him there and return him there if he left. This included the power to deprive RF of his liberty without any further authorisation being sought. At this stage there was no evidence that RF was suffering from a specific mental disorder, nor that this was of a degree warranting his compulsory confinement. RF was not joined as a party to these proceedings, and no safeguarder was appointed to represent him in the proceedings.
25. RF did not have an independent advocate during the 2025 Guardianship application. The minutes of the AWI case conference in October 2024 record this was briefly considered but not thought necessary as the local authority had statements from RF's solicitor in the Court of Protection proceedings and social worker, although these did not specifically address the issue of guardianship or any proposed guardianship application. This was at a time when they were aware RF wanted to return to Scotland and to keep DH as his care manager. In his witness statement dated 8 November 2024, DH (the social work team manager with the local authority) states RF was asked if he wished to have an independent advocate to 'present his views at any stage of this process. [RF] declined.' This evidence pre-dates the application for the 2025 Guardianship order made in December 2024.
26. RF's sister attended the AWI case conference in October 2024 and his father was consulted by the mental health officer, TY, when he prepared his report. The role of family members in the process was informal and there is no suggestion that any member consulted thought they had any role other than to give their views on the application.
27. TY, the local authority mental health officer, visited RF in early December 2024. He records RF wished to return to Scotland and be near his family. He did not ask him about Guardianship as he considered asking about that would cause unnecessary distress and agitation for RF.
28. The incapacity report of Dr P in December 2024 records RF being unable to engage in meaningful discussion about his welfare and there was no discussion about the application. Dr P records RF's mental disorder as 'cognitive impairment'. Dr S's report at the same time is to the same effect but records the disorder as 'learning disabilities and personality disorder'.
29. RF was served with the application for the 2025 Guardianship order in late December 2024 by the placement manager as directed by the Sheriff. She describes in an email what she told RF about the application and asked if he had any questions, her email states RF said he was 'okay. His presentation was indifferent'.
30. RF was not joined as a party, nor was a safeguarder or other representative appointed to represent him in the proceedings. The decision whether to appoint a safeguarder is one for the Sheriff (s 3 (4) and (5) AWI 2000).
31. A final Guardianship order was made on 16 January 2025 for a period of three years. This order gives the local authority the following powers in relation to RF:

(a) To decide where RF should live, to require him to live at that location, to convey him to that location and to return him to that location in the event of him absenting himself therefrom.

(b) To decide and approve the appropriate level of care and supervision to be provided to RF to safeguard his health and wellbeing.

(c) To decide whether RF should be permitted to participate in holiday, and cultural and social events and if so the nature and extent thereof.

(d) To authorise, where necessary and appropriate for the safety and protection of RF and others, any physical restraint including environmental restraint, by care providers who have completed the necessary restraint training provided it complies with all aspects of good healthcare and social care practice.

32. There is no dispute that RF lacks capacity to consent to his confinement and the Official Solicitor submits it is unrealistic to expect RF to access independent representation or assistance to challenge his detention. There is no effective process identified either in the Scottish regulations or the Guardianship order itself to enable RF speedy access to a court to review the lawfulness of his detention or to trigger any review on his restrictions at which RF would be represented.
33. In AB's statement she stated as follows:

When the guardianship application was made in December 2024, RF had already had a guardianship order for 3 years and there was no evidence that he was opposed to being subject to a guardianship order. All the evidence available regarding his current circumstances indicated that he remained incapable of managing his own welfare and financial affairs. He had been compliant with the involvement of Social Work in his life and had developed an attachment to his Social Worker. His views on the move from prison to his current home in [London] were sought by [DH] in December 2023 and he agreed to move albeit he was considered to not have capacity to make this decision for himself. He had previously agreed to move to [general care home] in 2021. He had also agreed to move to a tenancy provided by the Council with a support package in March 2023. If at any of these stages RF had been unwilling to comply with the decision of the welfare guardian, it would have been necessary to return to the Court with an application under section 70 [AWI 2000]. The Sheriff would then be required to consider whether RF might reasonably be expected to comply and if so make a further order to assist with implementation of the decision.

34. The Official Solicitor submits there is no effective route for RF to challenge the 2025 Guardianship order. Mr Ruck Keene draws the court's attention to s 71(1) AWI 2000 which enables RF to apply to the Sheriff for recall of the Guardianship order and the AWI 2000 places no bar on his ability to apply based on his capacity to make that application. Also, he submits, RF, or someone on his behalf, could raise his case with the Mental Welfare Commission (the Commission) and the Commission could itself recall the Guardianship order under s73(3) AWI or apply to the Sheriff under s71(1) AWI as a person claiming an interest in his personal welfare.
35. The report of TY, the local authority mental health officer, in December 2024 refers to on-going supervision if the Guardianship order was granted, stating 'Typically, Guardianship orders are subject to an initial review within 12 weeks of being granted and thereafter every 6-12 months'. The Official Solicitor observes that no evidence has been filed as to what this means, what the nature of the review process would be or whether, and if so how, RF's interests will be independently represented as part of that process.
36. The current support plan filed states that it was created on 7 December 2024 but the next review date is 6 months prior to that in June 2024 and the contents suggest it has not been updated since March 2024. It does not have any mechanism for review to consider whether the restrictions on RF's liberty, which includes 2:1 support at all times, remain necessary and proportionate to the risks he presents, nor for RF to have any independent support or representation as part of any review.

Legal Framework

37. There is broad agreement between the parties about the relevant legal framework.
38. The relevant statutory provisions are set out in the MCA 2005 at Schedule 3 ('Sch 3') that were brought into effect by s 63 MCA 2005.
39. Section 63 MCA 2005 provides as follows:

Schedule 3—

(a) gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm 5881) (in so far as this Act does not otherwise do so), and

(b) makes related provision as to the private international law of England and Wales.

40. The 2000 Hague Convention (the Convention) relates to "adults who, by reason of an impairment or insufficiency of their personal faculties, are not in a position to protect their interests". It provides a framework for the mutual recognition of measures taken by contracting states, the underlying presumption being that the courts or administrative authorities where the adult is habitually resident have primary jurisdiction to take such measures.
41. The Convention came into force on 1 January 2009, and has now been signed by 20 states including the UK. The UK has also ratified the Convention, but only in respect of Scotland, and so it is not yet in force in England and Wales. The Convention is implemented in Scotland by AWI 2000.
42. The applicable law in this case is therefore as set out in Sch 3 MCA 2005.
43. Sch 3 Part 4 paragraphs 19-22 MCA 2005 provide for the recognition and enforcement by the courts of England and Wales of orders made and certain other "protective measures" taken in foreign countries.
44. The primary provision under consideration is paragraph 19:

(1) A protective measure taken in relation to an adult under the law of a country other than England and Wales is to be recognised in England and Wales if it was taken on the ground that the adult is habitually resident in the other country.

(2) A protective measure taken in relation to an adult under the law of a Convention country other than England and Wales is to be recognised in England and Wales if it was taken on a ground mentioned in Chapter 2 (jurisdiction).

(3) But the court may disapply this paragraph in relation to a measure if it thinks that

(a) the case in which the measure was taken was not urgent,

(b) the adult was not given an opportunity to be heard, and

(c) that omission amounted to a breach of natural justice.

(4) It may also disapply this paragraph in relation to a measure if it thinks that

(a) recognition of the measure would be manifestly contrary to public policy,

(b) the measure would be inconsistent with a mandatory provision of the law of England and Wales, or

(c) the measure is inconsistent with one subsequently taken, or recognised, in England and Wales in relation to the adult.

(5) And the court may disapply this paragraph in relation to a measure taken under the law of a Convention country in a matter to which Article 33 applies, if the court thinks that that Article has not been complied with in connection with that matter.

45. Paragraph 20 provides for an application to be made for a declaration as to whether a protective measure taken under the law of a foreign country is to be recognised in England and Wales.
46. Paragraph 21 provides that for the purposes of paragraphs 19 and 20, a finding of fact relied on when the protective measure was taken is conclusive.
47. Paragraph 22 provides for an application to be made for a declaration that a protective measure is enforceable in accordance with the Court of Protection Rules, and states that such a declaration is mandatory if the measure falls within sub-paragraphs 19(1) or (2) and the paragraph is not disapplied under sub-paragraphs 19(3), (4) or (5).
48. It is mandatory for the Court of Protection to comply with the Human Rights Act 1998, and so if the protective measure failed to afford sufficient protection for RF's EHCR Article 5, 6 and 8 rights, the situation would fall within paragraph 19(4)(b).
49. Article 5 ECHR provides so far as it relevant

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

…

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

50. In Aberdeenshire Council v SF, EF and Sunderland City Council [2024] EWCOP 10 Poole J declined to recognise a Scottish Guardianship order which granted the guardian (SF's mother) the power to authorise the deprivation of SF's liberty for seven years, in circumstances which were not urgent, where she had been afforded no opportunity to be heard, and which he considered amounted to a breach of natural justice. Poole J refused recognition under paragraph 19 (4) on the basis that recognition would be contrary to a mandatory provision of England and Wales because it would breach Art 5(4) of the ECHR and therefore be unlawful under the HRA 1998 s6 and was also manifestly contrary to public policy. Poole J noted there was no mechanism for reviews during the 7 year period of guardianship, and accordingly no procedure to ensure the effective protection of her Art 5(4) rights.
51. At [18] in SF Poole J made it clear no party asserted that the process of making guardianship orders in Scotland is 'systemically defective'.
52. The leading judgment on Schedule 3 is Re PA, PB and PC [2016] Fam 67; [2015] EWCOP 38. Baker J (as he then was) held at [97] that when considering the application of paragraph 19(4)(b),

" … this court should conduct a limited review to satisfy itself that the Irish orders comply with the European Convention, and in doing so should strive to achieve a combined and harmonious application of the provisions of the two international instruments. I accept their submission that, when considering applications to recognise and enforce compulsory psychiatric placements under Schedule 3, the limited review should encompass the court being satisfied that (1) the Winterwerp criteria are met and (2) that the individual's right to challenge the detention under article 5.4 is effective (i e that they have a right to take proceedings to challenge the detention and the right to regular reviews thereafter)."

At [64] Baker J had summarised the three conditions for lawful deprivation of liberty under Art 5(1)(e) identified in Winterwerp v The Netherlands (1979) 2 EHRR 387,

"In that decision, the European court held that, except in emergencies, depriving the liberty of someone of unsound mind can only be lawful under article 5.1(e) if three minimal conditions are satisfied: (1) the authority responsible for the deprivation of liberty must establish through objective medical expertise that the person is of unsound mind; (2) it must be established that the mental disorder is a kind or degree warranting compulsory confinement; (3) the validity of continued confinement depends on the persistence of mental disorder."

53. At paragraph [60] of Winterwerp (above), the ECHR held in relation to Art 5(4):

"The judicial proceedings referred to in Articles 5 (4) need not, it is true, always be attended by the same guarantees as those required under Article 6 (1) for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded 'the fundamental guarantees of procedure applied in matters of deprivation of liberty'. Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves."

54. In HSE of Ireland v Moorgate [2020] EWCOP 12. Hayden J stated at [34] and [35]:

"[34] As Baker J properly recognised, there may be a range of decisions made under the laws of different jurisdictions that are advanced for recognition under Schedule 3. Although an extensive review as to the merits of the foreign measure will be neither necessary nor indeed appropriate, a limited review will always be required, the objective of which will be to identify any cases where the content or form of the foreign measure is inappropriate, disproportionate or clearly discordant with sound welfare-focused practice in the UK.

[35] Given the significant restrictions integral to the measures in question in this case, and the draconian nature of any compulsory psychiatric placement and treatment of an individual, there is an obligation on the Court of Protection to be clear that the criteria in Winterwerp v Netherlands (1979) 2 EHRR 387 are met. This is to emphasise the importance of recognising that when depriving the liberty of someone of unsound mind, the Court can only act lawfully where it has satisfied itself that the safeguards guaranteed by Article 5(1)(e) and 5(4) are in place."

55. In MS v Croatia (No. 2) (Application no. 75450/12), the European Court of Human Rights held in relation to Article 5(4):

"152. … the Court reiterates that in the context of the guarantees for a review of compliance with the procedural and substantive conditions which are essential for the "lawfulness", in Convention terms, of an individual's deprivation of liberty, the relevant judicial proceedings need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see, amongst many others, Stanev, cited above, § 171).

153. This implies, inter alia, that an individual confined in a psychiatric institution because of his or her mental condition should, unless there are special circumstances, actually receive legal assistance in the proceedings relating to the continuation, suspension or termination of his confinement. The importance of what is at stake for him or her, taken together with the very nature of the affliction, compel this conclusion (see Megyeri v. Germany, 12 May 1992, § 23, Series A No. 237-A). Moreover, this does not mean that persons committed to care under the head of "unsound mind" should themselves take the initiative in obtaining legal representation before having recourse to a court (see Winterwerp, cited above, § 66)."

56. In her written submissions Ms Roper helpfully summarises the key requirements for compliance with Article 5 as follows:

(a) A process for the initial detention which ensures that there is sufficient evidence before the court that the proposed detainee is suffering from a mental disorder, and that this is of a nature and degree necessitating the actual confinement proposed (Art 5(1));

(b) Accordingly, evidence to enable the court to consider whether the proposed restrictions are proportionate to the risks to the detainee and/or others if they are not imposed (Art 5(1));

(c) An effective opportunity for the proposed detainee to be heard on the application, which may require independent representation (Art 5(1));

(d) An opportunity for speedy review of the confinement by a court, which again may require independent representation for the detainee (Art 5(4));

(e) Provision for further regular review by the court at such intervals as is necessary to provide sufficient safeguards for the detainee (Art 5(4));

(f) Those reviews should not be dependent on the goodwill of the detaining authority, and should be conducted with up to date medical evidence (Art 5(4));

(g) The availability of effective independent representation for the detainee throughout the period of confinement, as an independent check on whether their circumstances may have changed such that the restrictions in place are no longer required to the same degree of intensity, and to support an application to court if one is needed (Art 5(4)).

Submissions

57. In his submissions Mr Ruck Keene, on behalf of the local authority, realistically recognises the court may have some hesitation about recognising and enforcing the 2025 Guardianship order in accordance with paragraph 19 Sch 3 MCA 2005.
58. His primary submission is that the 2025 Guardianship order can be recognised as he submits RF was formally consulted by TY, a mental health officer, when he visited RF in December 2024. Although RF was not able to engage meaningfully in the conversation, he was able to confirm he wished to return to the X area in Scotland and would need support to meet his needs. Although employed by the local authority Mr Ruck Keene submits the evidence from AB sets out how TY was acting in an independent role and is not involved in RF's care generally.
59. Having seen the submissions on behalf of the Official Solicitor Mr Ruck Keene submitted a note on procedures under AWI 2000 setting out that the decision of whether to appoint a safeguarder is one for the Sheriff (s3(4) and (5) AWI 2000). In addition, RF could apply to the Sheriff for recall of the Guardianship order under s71(1) AWI 2000 or RF, or someone on his behalf, could raise his case with the Mental Welfare Commission (the Commission). The Commission could itself recall the Guardianship order under s 73(3) AWI 2000 or apply to the Sheriff under s71(1) AWI. Mr Ruck Keene submits that RF's ability to have the matter returned to court and reviewed by the court is not dependent on the detaining authority. Further the existence of the Commission which has powers both to visit RF and to bring matters before the Sheriff 'is an important feature for the court to have regard to in considering submissions about the extent to which there need to be any form of ongoing independent representation for those in the position of RF'.
60. In his written submissions Mr Ruck Keene states the local authority 'is cognisant of the very clear stance of the English courts towards regular reviews of deprivation of liberty (reflecting, in part, the provisions of Schedule A1 to the MCA 2005), and would not seek a declaration that the order be enforceable for more than a year from the date of the Guardianship order' and as a result the local authority 'only seek that the order provides for the order to be enforceable in England and Wales until 15 January 2026'.
61. In the event the local authority application is not granted Mr Ruck Keene invites the court to give guidance on applications under Sch 3 MCA 2005 to continue the interim orders while the local authority applies for a further Guardianship order in light of that guidance, and make directions for the Sch 3 application MCA 2005 to be returned to and determined by this court.
62. Ms Roper submits the court should not recognise the 2025 Guardianship order as the grounds set out in paragraph 19 (3) and (4) Sch 3 MCA 2005 are both applicable. The focus of the submissions were on paragraph 19 (4) as she submits 'taking all relevant factors into account, the order made in this particular case is so far from compliant with the requirements of Article 5, 6 and 8 that even a limited review must lead to the conclusion that it should not be recognised in this jurisdiction'. The Official Solicitor makes clear that this position relates to this case and it is no part of her case that such orders can never be recognised. As she submits 'an application for recognition must be considered on its facts, with the limited review set out in the case law'.
63. The submissions in relation paragraph 19(3) set out that it was a feature of the 2025 Guardianship order that RF was not joined as a party and no independent advocate or safeguarder was appointed. Article 5 (1)(e) requires an adult who is being deprived of his liberty to be afforded sufficient effective opportunity to be heard in the course of those proceedings. The issue to consider is whether that was given. The Official Solicitor submits it was not given as due to RF's circumstances and presentation the principles set out in MS v Croatia (App no 75450/12 19 February 20915) at [147], [151]-[154] applied. RF needed independent assistance to have effective access to the court, and the opportunity of being heard. Additional steps should have been taken to ensure he was adequately represented. The Official Solicitor submits the only involvement of any independent advocate in respect of RF at any stage was one telephone conversation between him and the independent advocate prior to the 2021 Guardianship order on 1 February 2021. No independent advocate attended the AWI case conference in October 2024 nor was one appointed to support RF in the application for the 2025 Guardianship order. The application was not urgent. The 2021 Guardianship order had lapsed in June 2024 and no steps were taken to renew it until October 2024. As a consequence, the Official Solicitor submits, RF was not given an effective opportunity to be heard in respect of the 2025 Guardianship order and submits that given the lack of urgency this amounted to a breach of natural justice.
64. As regards paragraphs 19(4) (a) and (b) the Official Solicitor submits both limbs are established. Under the Human Rights Act 1998 the court is a public authority and is bound by the requirements of s6(1) that it is 'unlawful for a public authority to act in a way which is incompatible with a Convention right'. The Official Solicitor submits it is of note that in this case, unlike in SF, the 2025 Guardianship order confers the power to authorise the deprivation of RF's liberty on the same public authority (the local authority) that creates RF's confinement. In such a case, the Official Solicitor submits, particular care must be taken to ensure RF's Article 5 right are adequately protected as the need for vigilant scrutiny of the actions and the decisions of the state in this context is particularly intense.
65. The Official Solicitor recognises that this situation bears superficial comparison to the administrative scheme established by Schedule A1 MCA 2005 however, she submits that the key difference is that scheme (i) fully recognises P's Article 5 rights are engaged, (ii) takes account of the potential conflict inherent in the creator of the arrangements which deprive P of their liberty being simultaneously empowered to authorise the deprivation, and importantly (iii) contains built in mandatory safeguards in particular the role of the Best Interest Assessor (BIA), those of the Relevant Person's Representative, the time limit period of authorisation (no greater than recommended by the BIA and never more than a year), and the right to challenge under s21A MCA 2005, with non means legal aid ensuring P has the benefit of independent legal advice and representation.
66. The Official Solicitor submits that the 2025 Guardianship order does not comply with the requirements of Article 5(1) and (4) for the following reasons:

i) The order was made for three years. Whilst no firm minimum period between each court based review has been set by the ECHR the ECtHR has emphasised that those detained pursuant to Article 5(1)(e) are entitled to reviews at 'reasonable intervals' (see Winterwerp at [55], [58] and [60]; Abdulkhanov v Russia (App no. 14743, 11 February 2013) at [209]). The three year period in the 2025 Guardianship order is longer than reasonable given the changes that are anticipated in RF's case, for example his repatriation to Scotland or any changes in wishes that RF may have. On the face of the 2025 Guardianship order the local authority can make as much or as little progress as it thinks fit with no independent scrutiny or check of its actions. The Official Solicitor notes this issue is reflected in the revised position of the local authority in their written submissions seeking recognition of the order for one year. The application has not been amended.

ii) Article 5(4) requires that, having been deprived of his liberty RF should be 'entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful'. There is no provision identified in the application or order which would have enabled RF to do this and no structure by which he would have access to a court, particularly bearing in mind his inability to instruct his own solicitor (see DD v Lithuania (App no. 13469/06, 14 February 2012) at [163 c)).

iii) There is no effective avenue for challenging the detention in court nor any process for proper review during the three year term. Any effective internal review structure or other process is required to monitor any change in circumstances which might render the deprivation unlawful or suggest a change in the restrictions in the intervening period. That is not present here (see, for example, SF at [32]).

iv) Article 5 (1) and (4) require independent representation for an individual deprived of their liberty, not only in relation to the initial detention and the court based review of that detention but also during the whole of the review period. It should be effective, and not dependent on the goodwill of the detaining authority (see Raudevs v Latvia (App no. 24086/03, 17 December 2013) at [82]). Safeguards should be put in place to put P in an equivalent position to a person who has capacity (so can review, test and challenge those arrangements themselves) (see DD v Lithuania at [163(c)] and [165] – [166]). This requires some form of independent representative to be in place who has specific obligations to monitor P's care and make or support any appropriate challenge. In AB's evidence she sets out that the mental health officer appointed to prepare the assessments in support of the application acts independently of the local authority. However, there is no evidence as to their continued involvement in reviewing RF's care management for the duration of the review period. RF's sister attended the case conference in October 2024 and other family members have been consulted but they have no formal monitoring role or any obligation to make a further application in the event of any relevant change in circumstances. The mandatory safeguards in England and Wales where the court authorises a community Deprivation of Liberty include that the initial authorisation will be given by a court following proceedings in which P is usually joined as a party with their own representation; the standard model in Re X cases directly appoint a rule 1.2 representative who must keep P's arrangements under review and must return the matter to court if they are no longer satisfied the arrangements are in P's best interests (see RD & Ors (Duties and Powers of Relevant Person's Representatives and section 39D IMCAS) [2016] EWCOP 49).

v) The reliance by the local authority on s70 AWI 2000 does not sufficiently answer how RF is to restore the matter back to court during the three year period of the order if there is a change in circumstances from RF's perspective (see Hillier v Austria (App no. 1967/14, 22 February 2016) at [54]). That statutory provision does not sufficiently cover the situation where P is placed where the Guardian says he must live, P starts to object to this placement and/or the involvement of the local authority in his life, P takes no active steps to leave the placement as he may be aware of the consequences if he does, for example being returned by the police. Whilst the Official Solicitor recognises at present in this case RF agrees with the local authority there are no effective safeguards in place for RF in the event of that changing.

67. The Official Solicitor submits there is nothing to suggest that the 2025 Guardianship order could not have contained the safeguards outlined. There is power to appoint an independent safeguarder, limit the time period of the Guardianship order to, say, one year or less. Other safeguards could be built in to any order to ensure it is compliant with Article 5. The Official Solicitor has made clear that she does not contend that the system is systemically defective but submits 'the point is simply that without the mandatory provisions set out in (for example) Sch A1 MCA 2005 and in the Re X process, it is left to the discretion of the Scottish court to decide what safeguards to include, and for this – no doubt – they are highly dependent on the information provided by the applicant'.
68. It is for these reasons that the Official Solicitor submits that with the significant absence of Article 5 safeguards 'it would be manifestly contrary to public policy, and would place this court in breach of s6(1) HRA 1998, to recognise and enforce the Scottish Guardianship order insofar as it permits [RF's] appointed Guardian to authorise the deprivation of his liberty'
69. Like the local authority, the Official Solicitor submits that even though the court has a discretion if either the grounds in paragraphs 19 (3) or (4) are made out it is difficult to contemplate a scenario in which the grounds in paragraph 19(4) are made out yet goes on the recognise the order anyway (see SF at [36]).
70. The Official Solicitor does not support the position of the local authority in seeking recognition and enforcement limited to one year and submits if the court accepts the grounds under paragraph 19 (3) and (4) are made out that should be an absolute bar to recognition and enforcement of this order. This is particularly so if the court accepts the wider submissions that there are other grounds in which RF's rights under Article 5 are not protected, independent of the length of time of the order.

Discussion and decision

71. The role of the court in this application is to consider, by way of a limited review in each case where an application for recognition and enforcement is made whether (1) the process whereby the order in question was made, and (2) the effect of that order, afforded sufficient protection for the EHCR rights of the individual who is the subject of the order.
72. The Official Solicitor's position in this case is the same as it was in SF which Poole J summarised at [18] as follows:

"18. I note at the outset that it is no part of the First and Third Respondents' case that the process of making guardianship orders in Scotland is systemically defective. The First and Third Respondents have referred me to the Scottish Law Commission's Report on Adults with Incapacity published on 1 October 2014, which recommends amendment of the 2000 Act to include a more detailed legal process for the scrutiny of deprivation of liberty of an adult in a care home or community placement to ensure compliance with ECHR Article 5. The Scottish government published a consultation paper in 2015 but has not yet made any decision as to how to progress the issue. Nevertheless, I am not invited to question whether the guardianship order legislation within Part 6 of AISA 2000 or the Scottish courts' general application of that legislation fails to comply with Art 5, Art 6, or Art 8 Convention rights. I am concerned with the particular SGO, and the process that was adopted to make it, in this case. Whilst I need to consider some of the factual circumstances concerning the making of the SGO, I remind myself that I must conduct a "limited review" as advised by Baker J."

73. Ms Roper confirmed it was submitted by the Official Solicitor in the SF case on behalf of SF that:

(a) It was not contended that the Scottish system was inherently incompatible with Article 5.

(b) The "limited review" which the Court of Protection carries out does not require consideration of whether the Scottish system is systemically defective as a whole.

(c) Rather, the court should consider, in each case where an application for recognition is made, whether (1) the process whereby the order in question was made, and (2) the effect of that order, afforded sufficient protection for the ECHR rights of the individual who is the subject of the order.

74. That is also the approach which the Official Solicitor submits this court should adopt when determining whether to recognise the 2025 Guardianship order made in respect of RF. I agree.
75. There is no issue between the parties that s 6 HRA 1998 applies and the court cannot act in a way that is incompatible with a Convention right.
76. Due to the nature of the 2025 Guardianship order, in particular the provisions in it regarding the deprivation of RF's liberty, Articles 5, 6 and 8 require careful consideration.
77. Whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Lashin v Russia (App No 33117/02, 22 April 2013) at [80]-[81]).
78. There is no dispute in this case that RF's Article 5(1) and (4) rights are engaged as the three key Storck components are present (see Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19 at [37]). The purpose of Article 5 is to prevent an individual being arbitrarily deprived of their liberty by the State.
79. The ECtHR cases emphasise in relation to Article 5(1) the need for someone in the position of RF to have an effective opportunity to be heard. In MS v Croatia (App no 75450/12, 19 February 2015) at [152] stating 'it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation…' and continuing at [154] 'an effective legal representation of persons with disabilities requires an enhanced duty of supervision of their legal representatives by the competent domestic courts...'.
80. As regards Article 5(4) rights in Winterwerp the court emphasised that what is required is 'a review of lawfulness to be available at reasonable intervals' [55], and that 'the absolute minimum for a judicial procedure is the right of the individual concerned to present his own case and to challenge the medical and social evidence adduced in support of his detention' [58]. The court went on at [60] and [66] as follows:

'60. … it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded "the fundamental guarantees of procedure applied in matters of deprivation of liberty" …. Mental illness may entail restricting or modifying the manner of exercise of such a right …, but it cannot justify impairing the very essence of the right. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.

66. Having "substantial and well-founded grounds for denying the lawfulness of [the] detention" cannot be a pre-condition for access to the proceedings contemplated by Article 5 para. 4 (art. 5-4), since this is precisely the issue that the domestic court should decide. Furthermore, Article 5 para. 4 (art. 5-4) does not require that persons committed to care under the head of "unsound mind" should themselves take the initiative in obtaining legal representation before having recourse to a court.' [emphasis added]

81. In DD v Lithuania (App.13469/06, 14 February 2012) the case law was summarised as follows:

163. Among the principles emerging from the Court's case-law on Article 5 § 4 concerning "persons of unsound mind" are the following:

(a) a person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings "at reasonable intervals" before a court to put in issue the "lawfulness" – within the meaning of the Convention – of his detention;

(b) Article 5 § 4 requires that the procedure followed have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place;

(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A; also see Stanev, cited above, § 171).

164. …

165. The Court accepts that the forms of judicial review may vary from one domain to another and may depend on the type of the deprivation of liberty at issue. …. However, … , the applicant was prevented from independently pursuing any legal remedy of a judicial character to challenge her continued involuntary institutionalisation.

166. The Government claimed that the applicant could have initiated legal proceedings through her guardians. However, that remedy was not directly accessible to her: the applicant fully depended on her legal guardian, her adoptive father, who had requested her placement in the Kedainiai Home in the first place. …. In this context the Court considers that where a person capable of expressing a view, despite having been deprived of legal capacity, is deprived of his liberty at the request of his guardian, he must be accorded an opportunity of contesting that confinement before a court, with separate legal representation. … ."

[emphasis added]

82. These authorities have recently been considered by Poole J in Re PQ [2024] EWCOP 41 (T3) where he was considering the arrangements to be put in place for PQ's participation in 'dormant' Court of Protection proceedings following the making of a Re X order authorising the deprivation of her liberty in the community. No family member was willing to act as PQ's rule 1.2 representative, and the local authority refused to fund a professional advocate. Relying on Raudevs (App 24086/03, 17 December 2013) at [83] Poole J held at [55] – [57] that:

 55. I have considered carefully whether PQ's participation can be satisfactorily achieved by relying entirely on the Local Authority to monitor and review the care arrangements and PQ's deprivation of liberty, and to restore the matter to Court as appropriate. Can the Court rely on the standard directions such as those set out above following streamlined proceedings which include requirements to restore the case to Court if there is a significant change in circumstances rendering the care plan more restrictive?  The Court could add requirements such as that a placement visit by a social worker is made and reported upon at least once a month, or that PQ is notified by a specified person of her right to challenge the arrangements and to seek advice or assistance (COPR Part 7). The difficulty with such arrangements, in the absence of an independent representative, is that there would be no independent oversight during the review period and all responsibility would fall on the detaining authority. Access to the Court should not depend on the goodwill of the detaining authority - Raudevs (above). Furthermore, the support for PQ would be reactive not pro-active. No independent person would be actively carrying out the functions of a representative to monitor, raise concerns that the Local Authority might not perceive, and if necessary initiate a challenge to the Local Authority. I have had careful regard to the particular circumstances of this case and in my judgement, without an independent representative acting for PQ during the review period, her Art 5(4) rights would be breached. Her continued effective participation requires some form of independent representation during the forthcoming review period, be it through a Litigation Friend, an ALR, or a r1.2 representative.

56. Nor do I regard it appropriate for the Court to take the role that a r1.2 representative might fulfil. The listing of, say, monthly periodic review hearings would not be a proportionate and effective use of the Court's resources. The Court lists should not be clogged up with monthly reviews of community DOL cases simply because no representative is available.

57.My conclusion that there would be no compliance with Art 5(4) without the appointment of a representative, be it a Litigation Friend, an ALR, or a r1.2 representative, is consistent with the domestic authorities, in particular the judgments of Munby J and Charles J set out above and the recent observations of Senior Judge Hilder in Bolton Council v KL (above). The likely need for representation for a P who is deprived of their liberty has been recognised not only in relation to the planned review of their deprivation of liberty but also during the whole of the review period. My conclusion also sits comfortably alongside the mandatory requirement for P to have a representative when deprived of their liberty in a hospital or care home under the DoLS regime. In the present case, without some form of independent representation, PQ's Art 5 rights would be "theoretical and illusory" not "practical and effective".

83. In the context of an application under Sch 3 MCA 2005 Poole J in SF refused to recognise a Scottish Guardianship Order which granted the Guardian (SF's mother) the power to deprive SF of her liberty for seven years. At [29] Poole J held that the criteria in paragraph 19 (3) were met since:

'29…no opportunity was provided to SF to be heard in the case in which the protective measure was made. Furthermore, having regard to the wide powers granted to the guardians, including authorisation of the deprivation of SF's liberty, and the application of those powers to any future community placement, and given the duration of the order (proposed to be indefinite and made for seven years), the failure to give SF an opportunity to be heard did amount to a breach of natural justice. I am sure that all those involved sought to protect SF's best interests and that SF's parents were properly assessed as being suitable guardians. I do not doubt that SF lacked capacity at that time to make decisions about her personal welfare. However, there was no opportunity for her wishes, feelings, and views to be communicated to the court and no provision made for her interests to be represented. There were no safeguards for the protection of her Art 5(1) rights. Natural justice required that in a case where SF's liberty was being put into the hands of others for a period of seven years, she should have had an opportunity to be heard and/or an opportunity to be represented. SF's access to the court should not have been dependent on her taking the initiative. Effective access should have been secured for her. As it is, there were no measures taken to ensure that her Art 5(1) rights were upheld.'

84. Poole J also found that the criteria in paragraph 19(4) were satisfied on the basis that the guardianship order in that case breached Article 5(4), stating at [32] – [35] as follows:

32. …. In the present case the SGO was made for seven years. There is no mechanism within the SGO for reviews within that period. Although SF now has the Official Solicitor acting on her behalf within these proceedings, that provision has been triggered first by the application by Sunderland City Council and now by the application by Aberdeenshire Council for recognition of the SGO. Neither were a party to the SGO application. If SF had a right to apply for a review of the guardianship order, there was no mechanism provided to give effect to that right. As a person of "unsound mind" steps should have been taken to secure the effective exercise of her art 5(4) rights but no provisions were made. In the absence of any representation for SF or any scheduled review, it was likely that the guardianship order would remain in place, without review, for seven years. This was so even when it was known at the time when the SGO was made that SF was considered fit for discharge from her hospital detention. Significant changes in her living conditions were anticipated but no review was provided for when those changes took place. The period of seven years is far longer than the maximum one year period in the MCA 2005 for the authorisation of a deprivation of liberty pursuant to Sch A1, para 29(1). The standard term of guardianship under the Scottish system is three years.

33. It is not for me, a judge in the jurisdiction of England and Wales, to lay down a maximum period for a Scottish Guardianship Order. In any event, what is a reasonable period would depend on the circumstances of the case. But, in this case, given the considerable powers the guardians were being granted, the likely change in living arrangements, and SF's vulnerabilities and her inability to trigger a review herself, and the absence of any representation to do so on her behalf, seven years without ensuring an effective review of the guardianship order was manifestly beyond a period that could be considered to be reasonable.

34. In my judgement, recognition of the SGO would be contrary to a mandatory provision of the law of England and Wales in that it would breach Art 5(4) of the ECHR and therefore be unlawful under the HRA 1998 s6. By the same reasoning, the absence of any opportunity for SF to be heard in the proceedings in which the SGO was made, was contrary to Art 5(1)(e) ECHR and therefore would have been unlawful under HRA 1998 s6.

35. Not only would recognition be contrary to mandatory provisions of the law of England and Wales, but those breaches of law would relate to fundamental human rights, not only under Art 5, but also under Arts 6 and 8.

85. Having considered the relevant Convention rights and the principles outlined above I have reached the conclusion that the grounds in paragraphs 19 (3) and (4) are established in this case and the application for recognition and enforcement of the 2025 Guardianship order should be refused.
86. In relation to paragraph 19(3) RF was not joined as a party to the application, no independent advocate or safeguarder was appointed to represent him, despite the draconian nature of the orders being sought. RF depended on third parties (a combination of family members, social workers and clinicians) to ensure the Sheriff court had all the relevant information about his circumstances and his views. This does not, in my judgment, sit easily with the requirements of Article 5 (1) for an adult who is being deprived of his liberty to be afforded sufficient effective opportunity to be heard in the course of those proceedings. He did not have independent assistance to have effective access to the court and the opportunity of being heard. It remains unclear why the routes that are available to achieve this were not taken, such as through the involvement of an independent advocate or appointing a safeguarder. The steps taken by TY were, in my judgment, insufficient to discharge this obligation in the context of the order being applied for, with the powers it contained and for the period of time being sought. During his single visit in early December 2024 TY did not ask RF about the Guardianship application and RF was served with the application after this visit. There is no evidence of any further attempts to seek RF's views about the application after that (other than the brief reference to RF's reaction when served with the application), nor further consider the involvement of an independent advocate, nor other opportunity for RF to be represented. In those circumstances it is difficult to conclude that RF was given an effective opportunity to be heard on the application, which may require independent representation bearing in mind his circumstances and presentation.. As a consequence, RF's Article 5(1) rights were not upheld. There was an absence of an effective opportunity for RF to be heard in the proceedings in which the 2025 Guardianship order was made and, as a result, was unlawful under s6(1) HRA 1998.
87. Like Poole J in SF at [31], I am aware of the high bar that should be met before finding that the processes of a court in another jurisdiction breached natural justice. However, I am satisfied that this case was not urgent, as the previous order had lapsed over six months earlier. RF was not given an effective opportunity to be heard and that omission amounted to a breach of natural justice.
88. Turning to consider paragraph 19(4) I need to consider whether recognition of the protective measure would be manifestly contrary to public policy (19(4)(a)) or would be inconsistent with a mandatory provision of the law of England and Wales (19(4)(b)).
89. S 6 HRA 1998 provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. The right under Article 5(4) for a review was determined in Winterwerp at [55] to require a review of lawfulness to be available at reasonable intervals. The 2025 Guardianship order made in RF's case was for three years. There is no mechanism in that order for reviews. Mr Ruck Keene draws the court's attention to the reference in NY's report dated 18 December 2024 to the reviews of RF's position that would be conducted stating in the additional note he submitted he is 'due to review the order 12 weeks after it was made; and again at 6 months'. There is no evidence that has taken place. The support plan in the court bundle states it was created on 7 December 2024 but the next review date is six months prior to that in June 2024, and the contents suggest that it has not been amended since March 2024. The support plan does not contain any provision for a review to consider whether the ongoing restrictions on RF's liberty authorised by the 2025 Guardianship order remain necessary and proportionate or for RF to have any independent support and representation as part of that review.
90. I reject the submissions on behalf of the local authority that the ability of RF to apply to the court under s71(1) AWI 2000, or that RF or someone on his behalf could raise his case with the Commission, meets the rights protected by Article 5(4). In my judgment RF's Article 5 rights would be 'theoretical and illusory' not 'practical and effective'. There was no mechanism in place to give practical effect to those provisions for RF bearing in mind the basis for the proceedings regarding RF's mental capacity and the lack of any effective review process. The absence of this mechanism, in the context of the extent of the powers given in the order to deprive RF of his liberty, the length of time the order is for, the likelihood of a possibility of a move back to Scotland, RF's inability to trigger a review himself and the absence of any representation to do so on his behalf for three years without a structure for review that RF is able to access is, in my judgment, beyond a period that could be considered to be reasonable. This is in the context of the maximum one year period in the MCA 2005 for the authorisation of a deprivation of liberty pursuant to Sch A1, para 29(1).
91. In my judgment, viewed through that lens, recognition of the 2025 Guardianship order would be contrary to the mandatory provision of the law of England and Wales as it would breach Article 5(4) and, as a result, be unlawful under s 6(1) HRA 1998.
92. I agree with the Official Solicitor that the court should reject the submissions by the local authority of a reduced period of time of one year. Leaving to one side any consideration as to whether it is appropriate at all for this court to recognise and enforce only part of the 2025 Guardianship order, the wider basis upon which this court has determined the grounds under paragraphs 19 (3) and (4) are not met by a reduced time period.
93. No party suggests that if the court finds that either of the grounds in paragraphs 19(3) or 19(4) established the court could go on and exercise its discretion and recognise the order anyway. I agree. Whilst respecting the importance of comity and acknowledging the differences in the legal framework as between Scotland and England and Wales, in circumstances where I have found that the 2025 Guardianship order was made in breach of natural justice and recognition of it would be manifestly contrary to public policy I should exercise my discretion to refuse recognition of the order.
94. I agree with the observations made by Poole J in SF at [37] when he stated

'I have been very mindful of the guidance of Baker J in Re PA, PB, and PC (above), that Parliament has authorised a system of recognition and enforcement of foreign orders and that it is not my role to refuse recognition purely on the grounds that certain procedures or substantive provisions in Scotland are different from those in England and Wales. As noted, no party sought to challenge the Scottish guardianship system itself. However, on the particular facts of this case, important aspects of the SGO and the procedure under which it was made were contrary to SF's fundamental human rights such that recognition should be refused. Schedule 3 provides an opportunity for the courts of this jurisdiction to carry out a limited review of protective measures made in another jurisdiction. It is not a "rubber stamp" exercise, as this case demonstrates.'

95. It will be clear from the terms of this judgment, as it was in Poole J's judgment in SF (No 2), the reasoning that underpins the decision in refusing the applications in each case. Paragraphs 18 and 19 of the checklist provided by Mostyn J in Annex A of Re SV [2022] EWCOP 52 should be updated to include reference to this decision and Poole J's decisions in SF and PQ.