Argyll and Bute Council v RF (No 2) (Registration under Sch 3 MCA 2005) [2026] EWCOP 41 (T3)

[2026] EWCOP 41 (T3)Case No COP 14259463
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 August 2026
Before
MRS JUSTICE THEISVICE PRESIDENT OF THE COURT OF PROTECTION
Between
Argyll and Bute CouncilApplicantRF (by his litigation friend, the Official Solicitor)Respondent
Francesca Gardner (instructed by Hugh James) for ApplicantSophia Roper KC and Benjamin Harrison (instructed by Edwards Duthie Shamash Solicitors) for RespondentHearing Hearing date: 24 June 2026Judgment: 19 August 2026
Approved JudgmentThis judgment was handed down remotely at 10.30 am on 19 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................This judgment was delivered in public but a transparency order dated 29 May 2024 is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity RF must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
[1]The court is concerned with an application dated 25 March 2026 brought on behalf of Argyll and Bute Council (“the local authority”) pursuant to the Mental Capacity Act 2005, Schedule 3 (“MCA 2005 Sch 3”) seeking recognition and enforcement of a Scottish guardianship order relating to RF dated 13 February 2026 (“2026 order”).[2]RF is a party to these proceedings and is represented by his litigation friend, the Official Solicitor.[3]By the time of the hearing on 24 June 2026 the Official Solicitor supported the application, save for her concerns regarding the outstanding third party disclosure orders that had been made to provide information concerning assessment of RF’s immediate health needs.[4]RF has been the subject of a previous judgment Argyll and Bute Council v RF [2025] EWCOP 12 (RF(1))when this court refused the local authority’s application for recognition and enforcement of a Scottish guardianship order relating to RF dated 16 January 2025 (“2025 order”).[5]Although there is now a consensus between the parties that the 2026 order should be recognised and enforced it is important that this judgment sets out the reasons why the subsequent application will now be granted.[6]The court is extremely grateful to the respective legal teams for their detailed written and oral submissions which have been a great assistance to the court.

Background

[7]Background The background to these proceedings are set out in detail in RF(1) between [6] – [19].[8]In summary, RF, 65 years old, was born and raised in Scotland. He has two siblings who remain living in the area where he was brought up.[9]Tragically, about 30 years ago, RF was involved in a road traffic accident. Following that accident his behaviour was reported to become more volatile, although there has been no diagnosis of any brain injury.[10]RF has a history of challenging behaviour from a young age which resulted in psychiatric interventions to help manage his mood swings.[11]RF was admitted to hospital in 2008 and diagnosed with clinical depression following the breakdown of a relationship.[12]Incapacity reports in 2024 suggested he had a cognitive impairment, learning disabilities and a personality disorder.[13]There is no issue in these proceedings that RF lacks capacity to conduct these proceedings, make decisions about his residence and about his care and support.[14]RF has lived at Z placement, based in London since December 2023. Prior to this he lived in a number of placements in Scotland, each broke down due to his challenging behaviour and his serious self-neglect. Between 2021 and 2023, RF had a number of admissions to hospital. In July 2023 RF was then in prison for about six months before his transfer to Z placement from prison.[15]The local authority remained committed to searching for a suitable placement for RF so he can be near his family. Z placement was never intended to be a permanent placement.[16]In May 2024 the local authority issued proceedings in the Court of Protection seeking orders authorising the deprivation of his liberty. Within those proceedings the Official Solicitor was appointed RF’s litigation friend. On 20 January 2025 HHJ Hilder determined that RF was habitually resident in Scotland.[17]On 16 January 2025, the Sheriff Court in Scotland made the 2025 order relating to RF for three years.[18]On 31 January 2025, the local authority made an application for recognition and enforcement of that order under Sch 3 MCA 2005.[19]On 15 April 2025, in RF(1), this court refused the application to recognise the 2025 order on the basis that RF was not given an opportunity to be heard in the guardianship proceedings, which amounted to a breach of natural justice (paragraph 19(3) Sch 3 MCA), and that recognition would have been inconsistent with a mandatory provision of the law of England and Wales, and would have been manifestly contrary to public policy (paragraph 19(4) Sch 3 MCA).[20]Following that decision the local authority sought orders in Scotland amending the 2025 guardianship order, with a view to renewing its application for recognition and enforcement of that order.[21]Further to hearings in the Sheriff Court on 11 June 2025, 8 July 2025 and 21 July 2025, the local authority application to reduce the duration of the 2025 order from three years to one year was granted. RF attended each hearing and was represented by a safeguarder, who was legally qualified. It was noted in the guardianship order that the local authority had indicated that it intended to make arrangements for an independent advocate to maintain contact with RF for the duration of the order so, as noted in the 2025 order, the ‘Advocate can provide assistance to the adult if circumstances change and it becomes appropriate for a variation or recall of the welfare guardianship order to be sought’.[22]By the time the matter came back before this court on 3 October 2025 the local authority stated it no longer sought recognition of the amended 2025 order (which was, by then, then shortly due to expire). The local authority was, at that stage, considering(1) whether to make a fresh application to renew the guardianship order in January 2026,(2) whether or not to apply for recognition and enforcement of any renewed guardianship order (if granted) and, if so,(3) whether to file more detailed evidence explaining the role of any advocate appointed to support RF throughout the duration of any renewed guardianship order.[23]In the light of the revised position of the local authority this court continued to exercise its temporary jurisdiction under paragraph 7(1)(d) Sch 3 MCA 2005 to authorise the deprivation of RF’s liberty in England and directed further evidence to be filed by the local authority. That evidence was to include an update on the steps being taken to identify a placement for RF in Scotland and clarification regarding RF’s mental health needs and, if required, what support is provided to meet them.[24]The local authority made an application to renew the 2025 order on 14 January 2026 to the Sheriff Court. On 13 February 2026, the Sheriff Court made a new guardianship order for a period of one year and appointed a solicitor to be RF’s safeguarder for the duration of the 2026 order. RF was present at that hearing and represented by the safeguarder. The Sheriff Court had a report from Dr S, Psychiatrist, who confirmed that RF suffers from a learning disability and personality disorder. Dr S had met RF and reported that it had not been possible to engage with RF in any meaningful discussion about his care and support. In his report, Dr S concluded RF lacked capacity to make decisions regarding his welfare as he did not demonstrate an ability to consider and adequately weigh up information regarding his personal welfare due to his mental disorders that cause him significant problems with processing and making sense of complex information. This was supported by the Mental Health Officer, Mr Y’s report dated 13 January 2026. Mr Y had met RF in December 2025. There was also a report from RF’s advocate, who had visited him in November 2025, which confirmed RF’s wish to move back to Scotland. Finally, the report from the safeguarder, dated 9 February 2026 supported the making of a guardianship order having met RF on two occasions and consulted with relevant family members and professionals. In that report the safeguarder set out how she would support RF during the term of the guardianship order if it was made.[25]The 2026 order re-appoints the Chief Social Work Officer of the local authroity to be RF’s Welfare Guardian for one year, and includes the following:a. 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;b. The power to require access to RF to be given at any place where he is residing to any medical practitioner, mental health officer or other person specified by the Guardian to assist with his medical or personal welfare;c. The power to decide and approve the appropriate level of care and supervision to be provided to RF to safeguard his health and wellbeing;d. The power to make decisions in relation to RF’s diet, nutrition and personal appearance;e. The power to decide whether RF should be permitted to participate in holiday, cultural and social events and if so the nature and extent thereof;f. The power to open, read and attend to any mail or other communication addressed to or received by RF and to make arrangements to have such mail dealt with;g. The power to make decisions on behalf of RF with regard to the extent of smoking to ensure his health and wellbeing, andh. The power to authorise, where necessary and appropriate for the safety and protection of RF and others, any physical restraint, by care professionals provided who have completed the necessary restraint training provided it complies with all aspects of good healthcare and social care practice.[26]The key differences between the 2026 order and the 2025 order are that RF was present at the hearing when the 2026 order was made, he was represented by a legally qualified safeguarder, he was supported by an independent advocate and the order was made for one year. In the 2025 proceedings RF was not joined as a party, not represented and not present when the original order was made for three years. The 2026 order provides for the independent advocate and legally qualified safeguarder to be appointed to represent RF for the duration of the order, with an effective review structure, whereas in the 2025 order there was no effective review mechanism to support RF to apply to vary or discharge the order if his circumstances changed.[27]On 25 March 2026 the local authority made a COP9 application seeking recognition and enforcement of the 2026 order. Following directions made on 27 April 2026 the application was listed for hearing on 24 June 2026.[28]Having heard oral submissions on 24 June 2026 I made further directions regarding the outstanding information from the NHS regarding RF’s immediate health needs fromSouth London and Maudsley NHS Foundation Trustaddressing:(a) Whether a care coordinator has been appointed for RF and, if so, their name and contact details shall be provided;(b) If no care coordinator has been provided for RF, reasons shall be provided;(c) Whether RF has been referred to the neuropsychiatry service at the South West London Mental Health Trust and, if so, copies of the referral shall be provided along with details of the outcome of the referral (if known);(d) If RF has not been referred to the neuropsychiatry service at the South West London Mental Health Trust reasons shall be provided;(e) Whether RF has been referred to specialist learning disability services and, if so, copies of the referral shall be provided along with details of the outcome of the referral (if known);(f) If RF has not been referred to specialist learning disability services reasons shall be provided. The court listed the proceedings back before me on 2 July 2026.[29]The outstanding information was provided by that date, and the parties agreed that the hearing on 2 July 2026 could be vacated.

Evidence

[30]Evidence In support of the application the court has the documents filed in support of the 2026 guardianship application. In addition, the local authority has filed two statements from the safeguarder in response to matters raised by the Official Solicitor.[31]Those statements outline the safeguarder’s experience and the relevant statutory framework, as it applies in Scotland. The general principles in section 1 Adults with Incapacity (Scotland) Act 2000 (“AWI 2000”) set out that decisions made on behalf of RF must benefit him, be the least restrictive option, take into account his present and past wishes and feelings, be made in consultation with relevant others, and encourage RF to maintain and develop skills. The safeguarder’s statement sets out the framework under which she would consider making an application to challenge the provisions of a guardianship order and the system that has been established whereby she receives monthly reports from RF’s advocate. She confirmed she has taken steps to monitor the progress being made to repatriate RF back to Scotland and will continue to do that. As regards the funding for any application back to court she gave details of her experience in the past of having successfully applied to the Scottish Legal Aid Board as a safeguarder to represent an adult with incapacity in court and is ‘confident’ that if she, as RF’s safeguarder, considered an application for variation or recall of the guardianship order should be made legal aid would be granted.

Legal framework

[32]Legal framework The Adults with Incapacity (Scotland) Act 2000 (“AWI 2000”) is an Act of the Scottish Parliament to make provision as to the property, financial affairs and personal welfare of adults who are incapable by reason of mental disorder or inability to communicate. Part 6 deals with guardianship orders and s.64 provides: “64 Functions and duties of guardian (1) Subject to the provisions of this section, an order appointing a guardian may confer on him— (a) power to deal with such particular matters in relation to the property, financial affairs or personal welfare of the adult as may be specified in the order; (b) power to deal with all aspects of the personal welfare of the adult, or with such aspects as may be specified in the order;"[33]Applications for guardianship orders are made under AWI 2000 s57. By s 58(4):
“Where the sheriff grants the application under section 57 he shall make an order (in this Act referred to as a "guardianship order") appointing the individual or office holder nominated in the application to be the guardian of the adult for a period of 3 years or such other period (including an indefinite period) as, on cause shown, he may determine.”
[34]There is no equivalent of s.5 MCA 2005 in the AWI 2000. As a result there is no “general authority” (see Lady Hale in N v ACCG [2017] UKSC 22 [38]) to act in relation to care and treatment of a person with impaired decision-making capacity, so there is a much greater need for formal authority to be granted to a person or (in a case such as RF’s) a local authority to be able to make relevant decisions in respect of their welfare.[35]The AWI 2000 does not contain the equivalent of s.16(4) MCA 2005, which provides that a decision by the court is to be preferred to the appointment of a deputy to make a decision. One-off ‘intervention orders’ under s.53 AWI (the equivalent of orders under s.16 MCA 2005) are therefore much less common in Scotland than the appointment of guardians.[36]The Attorney General for Northern Ireland’s Reference (Deprivation of Liberty) [2026] UKSC 16 (AGNI) applies in Scotland as regards the interpretation of Article 5 ECHR. There is no equivalent in Scotland of the DOLS framework that operates in England and Wales under Sch A1 MCA 2005 (to authorise a deprivation of liberty in hospitals and residential care homes) or the Re X process (to authorise a deprivation of liberty in the community). Issues relating to the authorisation of a deprivation of liberty in Scotland have been addressed primarily through the framework provided by guardianship orders (see K v Argyle and Bute Council [2021] SAC (Civ) 21 and Poole J in Aberdeen Council v SF & EF[ 2024] COPLR 85 at [8]).[38]The relevant statutory provisions regarding this application are set out in Sch 3 MCA 2005 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 the Adults with Incapacity Act 2000.[42]The applicable legal framework 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 in this case 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 ECHR Article 5, 6 and 8 rights, the situation would fall within paragraph 19(4)(b).[49]Article 5 ECHR provides so far as is 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 s 6 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]In 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)."[53]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."[54]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."
[55]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."
[56]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)."
[57]In their written submissions in addressing this new application for recognition and enforcement of the 2026 order Ms Roper KC and Mr Harrison helpfully summarise 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 reasonable 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

[58]On behalf of the local authority, Ms Gardner sets out the features of the 2026 order that are different from the previous order. RF was present and represented at the hearing when the order was made. The order is for a year. A safeguarder was appointed prior to the order being granted to investigate and report to the court and will remain in place for the duration of the order. Also, the order provides for RF to have an advocate who is commissioned by the local authority and will see RF every month. Additionally, there is a system of review between the advocate and the safeguarder.[59]Ms Gardner submits the two statements from the safeguarder provide the additional information sought on behalf of the Official Solicitor.[60]In her written submissions Ms Gardner states that the procedural irregularities highlighted by the court in RF(1) have been ‘robustly addressed’ by the local authority in the following ways:(1) RF was independently represented during the application process and at the hearing by an advocate and a safeguarder.(2) RF will be supported throughout the duration of the 2026 order by both the advocate and the safeguarder. RF will be visited at least every month and the safeguarder will be available to him should he wish to raise any concerns as regards his care.(3) The period of the 2026 order is one year which is in line with the statutory framework under the MCA 2005.[61]Ms Gardner resists any suggestion by the Official Solicitor for the court to keep RF’s habitual residence under review. She submits the evidence demonstrates that RF’s habitual residence remains in Scotland as determined by HHJ Hilder and more recently accepted by the Sheriff Court. The 2026 order would not have been made unless RF’s habitual residence was in Scotland (see Schedule 1 paragraph 1(1) (a) AWI 2000). Miss Gardner refers to paragraph 21 of Sch 3 MCA 2005, and submits that the findings of the Sheriff as regards RF’s habitual residence, is conclusive and therefore not open to this court to review.[62]As regards any outstanding information required within these proceedings regarding RF, Ms Gardner submits if the court recognises and enforces this order those issues will fall to the safguarder to follow up.[63]In their detailed written submissions on behalf of the Official Solicitor, Ms Roper KC and Mr Harrison make clear each case for recognition and enforcement is fact specific. They remind the court of the need, in circumstances where the same public body is responsible for initially confining RF and has the power to authorise the deprivation of RF’s liberty, for the court, even on a limited review, to give anxious scrutiny to the arrangements to ensure clear guarantees against arbitrary detention are present. They submit this is particularly so here, as there are no specified limits in the 2026 order regarding the deprivation of liberty as there would be in such an order being made in England and Wales.[64]Ms Roper and Mr Harrison make clear, as was made clear to Poole J in Aberdeenshire at [18], that it is no part the Official Solicitor’s case that the process of making guardianship orders in Scotland is systemically defective. The point Ms Roper and Mr Harrison make is that unlike the mandatory provisions in, for example, Schedule A1 MCA 2005 and the Re X process in England and Wales, it is left to the discretion of the Scottish court to decide what safeguards to include, which is likely to be dependent on the information provided by the applicant.[65]In relation to paragraph 19(3) Sch 3 MCA 2005 the Official Solicitor accepts in the light of the evidence filed that RF was given an opportunity to be heard prior to the making of the 2026 order and was present at the hearing when the order was made. Ms Roper and Mr Harrison compare that to the 2025 guardianship order where in RF(1) the court found at [86] that ‘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. ‘[66]Turning to paragraph 19(4) Sch 3 MCA 2005 the Official Solicitor accepts that the reports of Dr S and Mr Y set out the evidence the court had of RF’s mental disorder, the need for confinement and that the restrictions are proportionate. The appointment of RF’s safeguarder and the presence of RF’s advocate ensured RF had an effective opportunity to be heard when the 2026 order was made.[67]Turning to the mechanism for regular and effective reviews Ms Roper and Mr Harrison remind the court that at the directions hearing in April 2026 the Official Solicitor raised the issue as to what specific obligations would require the advocate or safeguarder to challenge the provisions of the 2026 order on behalf of RF, and what funding would be available to facilitate that.[68]Ms Roper and Mr Harrison submit that the two statements filed by the safeguarder provide important evidence when considering whether the requirements under Article 5(4) have been met in this case. They submit that the key considerations for the court to consider in this context is that the 2026 order is for a year, which is consistent with the framework in this jurisdiction under Sch A1 MCA 2005 and is the maximum period the Court of Protection authorises in situations where P is deprived of their liberty pursuant to the Re X process. As regards the review structure the evidence now establishes that an advocate will visit RF every month and report to the safeguarder, the advocate and the safeguarder will speak every three months and the safeguarder is able to raise matters of her own motion and can take proactive steps, including by making an application to the Scottish court for recall or variation of the 2026 order. If such an application is made RF would have independent representation and such representation is likely to be funded, making the safeguard an effective one.[69]Ms Roper and Mr Harrison submit that the Supreme Court emphasised in AGNI [2026] UKSC 16 at [206] that where a fundamental issue arises regarding the proper interpretation of the ECHR ‘it is for the European court to give the lead in laying down the approach to be followed’. As a result, they submit, the question is whether recognising and enforcing the foreign protective measure would be an incompatible interference with RF’s rights under the ECHR as interpreted by the Strasbourg courts. They submit, nevertheless, it remains instructive to compare RF’s position under the foreign protective measure if it is to be recognised and enforced with the protection that would have been afforded to RF had he been habitually resident in this jurisdiction. In that light, Ms Roper and Mr Harrison submit, the 2026 order is more aligned with someone in this jurisdiction in the equivalent position as RF.[70]In the light of the information now before the court the Official Solicitor does not identify any grounds upon which the court might choose to refuse to recognise and declare enforceable the 2026 order on the basis of the grounds set out in paragraph 19(4)(a) – (c).[71]The Official Solicitor sought a short term adjournment to enable the outstanding information (which had previously been directed by this court through the provision of section 49 orders and third party orders) to be obtained from various NHS bodies on the basis that this would benefit RF by avoiding any further delay due to the long standing involvement of this court and the Official Solicitor with RF, and bearing in mind that this information will help inform the type of placement and support RF will need in Scotland. As set out at [29] above that application was granted until 2 July 2026 when the outstanding information was provided by the relevant NHS bodies.

Discussion and decision

[72]Discussion and decision There is now no issue between the parties that the 2026 order should be recognised and enforced.[73]The evidence demonstrates the important changes that have been made since the application to recognise and enforce the 2025 order. In particular, the length of time the order is for, namely one year. This brings the length of the order in line with the relevant framework in this jurisdiction under the MCA. Whilst that comparison alone is not a determining factor, it is, in my judgment, a relevant consideration.[74]The evidence demonstrates that RF was engaged with and was represented during the application process, as explained in the reports the Sheriff Court had in February 2026, particularly from the safeguarder who had met RF twice and will continue to safeguard his interests during the currency of the order. The commissioning of an advocate by the local authority has supported RF’s engagement through the monthly visits. Going forward the advocate provides an integral part of the structure that underpins the review process.[75]The local authority remain committed to seeking to secure an appropriate placement for RF to return to live in Scotland, which is supported by his wider family who the local authority is engaged with.[76]RF is deprived of his liberty in accordance with the multifactorial test outlined in AGNI in that he is confined to the Z placement, the doors are locked, he is supervised at all times, including 2:1 in the community, he is placed in this jurisdiction against his wishes as he wants to return to live in Scotland and is not able to visit his family in accordance with his wishes.[77]RF’s Article 5 rights are clearly engaged. As a result this court must undertake a careful scrutiny of how those rights are protected under the 2026 order, albeit within the confines of the requirements set out in Sch 3 MCA 2005.[78]Whilst there is no minimum period for any court-based review set out in the ECtHR cases, the cases have emphasised that those detained under Art 5(1)(e) are entitled to reviews at reasonable periods (see Winterwerp at [55], [58], [60] and [66]). The period of one year in the 2026 order now aligns with the period under the comparable MCA 2005 framework in this jurisdiction which provides on the facts of this case a useful guide.[79]The requirement in Art 5(4) that there should be some form of internal review structure to monitor whether there is evidence of any material change in RF’s circumstances that may result in the deprivation of liberty becoming unlawful, or a need for any change in the restrictions during the currency of the order are now, in my judgment, provided for. This is evidenced by the monthly visits to RF by the advocate, the advocate reporting to the safeguarder following these visits, the three monthly meetings between the advocate and the safeguarder and the confirmation from the safeguarder of the proactive steps she can take outside this framework to raise her own concerns regarding the powers being exercised under the 2026 order.[80]The requirement under Art 5(4) that RF should be able to take proceedings to challenge the lawfulness of his detention is met as the experienced safeguarder, who is legally qualified, has confirmed in her written evidence that she is appointed throughout the one year term of the order and would be able to make an application for recall or variation of the 2026 order on behalf of RF under ss.71 and 74 AWI 2000, and any steps she takes are independent of the detaining authority. In her second statement she provides confirmation that she is confident RF would receive legal aid to make such an application.[81]Drawing all the threads together I am satisfied: a) RF is an adult for the purposes of Schedule 3 to the Mental Capacity Act 2005 (“MCA 2005”). (b) The protective measures of the Sheriff Court contained in the Order of 13 February 2026 (“the Protective Measures”) stand as protective measures in respect of RF for the purposes of Schedule 3 to the MCA 2005. (c) The Protective Measures were taken on the basis that RF was habitually resident in Scotland. (d) RF had a proper opportunity to be heard before the Sheriff Court for the purposes of paragraph 19(3)(b) of Schedule 3 to the MCA 2005. (e) The criteria under article 5(1)(e) for the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) are satisfied in respect of the detention of RF. (f) RF will be afforded a regular right of review of his detention in the Sheriff Court so as to comply with article 5(4) ECHR. (g) Recognition of the Protective Measures:(i) would not be manifestly contrary to public policy; and(ii) would not be inconsistent with a mandatory provision of the law of England and Wales.[82]In those circumstances the order dated 13 February 2026 will be recognised and enforced under Schedule 3 MCA 2005.[83]As I explained in RF(1) at [95] 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, RF(1), and Poole J’s decisions in SF and PQ.