“4. Best interests (1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of— (a) the person's age or appearance, (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. (2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. (3) He must consider— (a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and (b) if it appears likely that he will, when that is likely to be. (4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. (5) …. (6) He must consider, so far as is reasonably ascertainable— (a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so. (7) He must take into account, if it is practicable and appropriate to consult them, the views of— (a) anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, (b) anyone engaged in caring for the person or interested in his welfare, (c) any donee of a lasting power of attorney granted by the person, and (d) any deputy appointed for the person by the court, as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6). (8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which— (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.”
“SF was saying to her mam that she knows the words that she has to say. EF told SF that she won’t be seeing her or GF no more as they won’t be travelling down again if she doesn’t come back to Scotland. SF said I know what to say, mam, EF continued to say, well remember what me and GF told you to say and you need to tell Miss H tomorrow exactly what we told you to say. SF responded by saying yes mam I remember exactly what you told me to say and I will say it tomorrow at Miss H. EF continue to say that she won’t have a new house or me and GF or your family, so you need to say what we told you to SF. SF once again agreed then change the subject.” iv) On2 May 2024 , SF told Miss H that she would like to move to Y. She did not know anything about Y at the time other than that it was close to her mother and brother. Even then, SF said that if her mother and brother came down to visit her more often, she would prefer to live in England, but said her mother was no longer able to come. v) On20 May 2024 , SF was again focused on Y, but also said that she “loves this house” and “love the life I have now”. vi) On 12 July SF came to court to meet me. Almost immediately after I had introduced myself she told me that she wanted to live in Scotland but she also spoke very positively about her life at X and the activities she enjoys. vii) Miss H visited SF again on 5 September and recorded, ‘Without prompting SF said, “My family want me to be in Scotland” and I asked her what she wanted to happen. SF said, “I’ve been told to tell you that’s what I want”
“If SF were to move to an alternative placement in [Northeast Scotland] this could take a long while to build trusting relationships with a new staff team. Although unclear how long this would take, history shows this was at least 18 months building these relationships. In that time SF can communicate distress through behaviour that can be very challenging which could be very distressing both for SF and staff supporting with these behaviours. Historically this has led to high numbers of restraints which can have psychological impact on SF and on the caring relationships between staff and SF. If SF moves to an alternative placement in [Northeast Scotland] a transition period would be needed. This will involve long trips to and from Y for both SF and carers. The logistics of the transition and impact on physical and mental health need to be considered. The transition from hospital to current placement was for approximately 8 months. This consisted of staff from ORBIS working directly into the hospital for 6 months, then hospital staff working in the current property for 2 months when transitioned. Having a change in activities with different people in a different place could have a significant impact on SF. Impact from previous change in activity are physical aggression to staff by way of kicking, hitting with force, biting, spitting. It has taken a substantial amount of time and consistency from staff to provide a fulfilling quality of life with a variance of activities explained above, which continually change.”
“SF has regular facetime contact with EF. SF texts and telephones for contact multiple times each day with EF. SF calls, texts and facetimes GF much less. EF and GF have visited SF some 16 times between August 2022 and the beginning of August 2024.”
“2(a) The first is SF is from Scotland, her family live in Scotland and SF identifies as being Scottish. (b) SF’s contact with her family is important to her and it is clear she will have more contact with her mother and brother if she returns to live there. Equally, there is a risk that SF’s contact with her family will reduce significantly if she remains in X. (c) SF’s wishes and feelings. Mr A notes that over time SF’s wishes and feelings have varied. He notes that determining SF’s wishes and feelings has been compromised by family members telling SF what to say. Mr A noted, however, that his last visit to SF was important. SF was clear that she wanted to stay in X. Mr A states that standing back, whilst it remains difficult to say with certainty that SF wants to stay in X, the vast majority of recent discussions suggest that these are SF’s true wishes and feelings. He notes that understandably SF may want to stay there because of the excellent support and care provided to her. In contrast, a move to Y could detrimentally affect her mental health which has remained relatively stable since her discharge.”
“The strongest factor in favour of a return to Scotland is the opportunity which SF would have for more contact with her mother and brother (there is no wider community in Scotland of people who have kept in touch with SF in the 9 years since she left Scotland). Even with the risks of transition, and SF’s understandable refusal to visit her mother at home, she would almost certainly see more of them if she moved to a place [in the Northeast of Scotland], and that would almost certainly be a positive experience for her the vast majority of the time. Against that must be set both the concrete positives of SF’s life in England, and the risks of another move, bearing in mind past experience. The positives have been set out above and elsewhere by the Official Solicitor: SF is flourishing at X. The fact she has recently joined a new club shows there will be further opportunities for her to develop her interests and skills if she remains where she is. The risks of transition are great: it is likely to impose on SF a prolonged period of anxiety and disruption, and to cause a deterioration in her behaviour which will lead to greater restrictions by staff and greater levels of restraint over a period of potentially many months, both while SF remains in England and for a further lengthy period while she settles into Y, even if that goes as well and is managed by staff as positively as the move to X (which can by no means be guaranteed). Taking all the above into consideration, the Official Solicitor considers that on the evidence as it is currently known, it is in SF’s best interests to remain at her placement in X, to receive the same care and support which she has been receiving to date, and which has proved so successful, assuming that she can still maintain regular contact with her family.”