Vulnerable woman placed in care home in England from Scotland now habitually resident south of the border, senior judge rules

In CW v Hartlepool Borough Council & Anor [2026] EWCOP 40 (T3) (14 August 2026), Mrs Justice Theis, Vice President of the Court of Protection, concluded that CW, a 33-year-old woman who has lived in a care home in the Hartlepool area since December 2022, was now habitually resident in England and Wales.

The case concerned CW’s placement at X Home by Scottish Borders Council (SBC) under a guardianship order made by the Jedburgh Sheriff Court in August 2022 for a period of three years.

CW has a diagnosis of emotionally unstable personality disorder, cognitive deficits and epilepsy.

The proceedings had initially concerned a challenge to a Standard Authorisation made by Hartlepool Borough Council (HBC) under Schedule A1 of the Mental Capacity Act 2005.

In those proceedings, the issue of CW's habitual residence was considered by HHJ Boothroyd, who declared that CW's habitual residence was in Scotland. However, she accepted this decision was “finely balanced” and might need to be kept under review.

SBC subsequently applied to the Sheriff Court for a further guardianship order. When they made that application, their position was that CW's habitual residence was in Scotland. The application was dismissed.

Following that decision, SBC applied to the Court of Protection for a declaration that CW’s habitual residence was in England and Wales.

Mrs Justice Theis said: “In their written submissions Counsel raised wider issue of practice that arose in this case. Having heard submissions on those matters I directed the parties to further liaise and submit a joint list with any areas of dispute identified. […] I have set out the list below with some modest modifications which may assist in similar cases:

“Pre-placement

14. Where placement of an adult from Scotland to England and Wales is contemplated, the placing authority should give full consideration to Schedule 1 of the Care Act 2014 and accompanying Statutory Guidance 2025: "Care and Support Statutory Guidance" Chapter 21 (Cross Border Placements). In particular the placing authority in accordance with the Guidance should:

a. Notify the second authority of its intention to make a cross border residential care placement.

b. Provide a provisional date on which it intends for the individual concerned to commence their placement.

c. Provide the second local authority with details of the proposed provider.

d. Seek that local authority's views on the suitability of the residential accommodation.

Post-placement

15. Where an adult is placed in England and Wales under a Scottish Welfare Guardianship order there should be a timely application for recognition and enforcement of that order under paragraph 19 Schedule 3 of the MCA 2005 to provide a clearly understood legal framework for decision making.

16. Where an adult from Scotland is placed in England and Wales under a Scottish Welfare Guardianship order and the adult is (or may be) deprived of their liberty the placing local authority should ensure that the second authority where the adult is placed is informed. Where any eligible person considers there is an unauthorised deprivation of liberty then paragraphs 67-73 Schedule A1 MCA 2005 provide a mechanism by which that can be drawn to the attention of the relevant local authority so that the process for determination of whether to grant a standard authorisation can be triggered.

17. Where recognition and enforcement of an order under Schedule 3 is sought all parties should be mindful of the key requirements of Article 5 as set out in Argyll and Bute Council v RF [2025] EWCOP 12 at [56] and steps which may be taken to prevent a breach of Article 5 as set out in Midlothian Council v DM [2025] EWCOP 61 should be considered. In all cases (including those where the adult's circumstances fall outside Article 5) parties ought to also consider whether Article 6 and/or 8 ECHR are engaged and whether the key requirements have also been met.

18. All parties should keep the issue of habitual residence under review throughout the placement.

19. Where an adult is placed in England and Wales under a Scottish Guardianship order which is coming to an end timely consideration of any further application should be made. Such consideration should include the current circumstances of the adult and whether it is considered that there has been a change in habitual residence. In the event that it is considered by the placing authority that there has been a change in habitual residence and it is intended that the placement should continue an application should be made to the Court of Protection prior to the expiry of the Scottish Guardianship Order.

20. Where there are concurrent sets of proceedings in England and Wales and Scotland effective and timely communication through use of the Judicial Protocol Regulating Direct Judicial Communications Between Scotland, England & Wales, and Northern Ireland in Cases of Adults who Lack Capacity ('the Protocol') provides the framework for the disclosure of relevant documents between the two sets of proceedings. In particular, any determination in relation to habitual residence should be communicated, if possible, without delay.”

Mrs Justice Theis observed that the factual landscape had changed since the issue was last considered in October 2025.

She said: “In October 2025 the evidential landscape that underpinned the finely balanced consensus regarding habitual residence being in Scotland was founded on the fact that CW had been placed at X Home in December 2022 by SBC using the powers under the guardianship order, the intention then was that the placement was temporary and CW's wishes were to return back to live in her local area in Scotland and had no family or friends in the Hartlepool area and rarely went anywhere in the local area.

“The current factual position is that CW remains in the X Home, where she has now been for over 3 ½ years. There is no limit of time as to how long she can remain there. It is not now considered by SBC to be a temporary placement and there is limited, if any, active steps being taken by SBC to proactively look at alternative placements.”

Mrs Justice Theis found – “having considered the updated evidence, and recognising the position remains finely balanced “ – that CW was now in the jurisdiction of England and Wales for the following reasons:

“(1) CW has now been in this jurisdiction for over 3 ½ years. Whilst that fact alone can't be determinative, it is a longer period than in October 2025 when this court last considered the issue.

(2) At the time this matter was last considered in October 2025, SBC were actively seeking to make an application for a guardianship order in Scotland recognising then that CW's habitual residence was in Scotland. […] That position changed as the factual landscape evolved so that by May 2026 they no longer supported CW's habitual residence being in Scotland. That position was accepted by the Sheriff's Court on 29 May 2026 when it dismissed the application for a guardianship order for want of jurisdiction.

(3) The more consistent picture of CW's wishes now are that she does not wish to return to live in Scotland. She has said that to a number of different people in different contexts, most recently to her solicitor.

(4) There is limited integration by CW in the local community, as she has continued to refuse all offers of arrangements to go out in the community. I have limited information as to what that may be caused by and what, if any, steps have been taken to be more creative in engaging CW in such activities. It also has to be recognised that she is subject to a deprivation of liberty regime which by definition limits her ability to integrate in the local community.

(5) CW's connections with Scotland are limited to her mother, who visits her about twice a year, and her brother, who she has no contact with. CW has no social contacts or connections in England.”

Lottie Winson