Court of Protection recognises Scottish guardianship order after safeguards strengthened

In Argyll and Bute Council v RF [2026] EWCOP 41 (T3) (19 August 2026), Mrs Justice Theis concluded that the Scottish guardianship order relating to the man dated 13 February 2026 would be “recognised and enforced under Schedule 3 MCA 2005”.

The case concerned RF, aged 65, who was born and raised in Scotland and has two siblings living in the area where he grew up.

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.

RF has lived at a placement in London since December 2023, having previously lived in a number of placements in Scotland which broke down because of his challenging behaviour and serious self-neglect.

The local authority remained committed to finding a suitable placement so that he could be near his family.

In May 2024, the local authority issued proceedings in the Court of Protection seeking orders authorising the deprivation of his liberty.

In January 2025, the Sheriff Court in Scotland made a Scottish guardianship order relating to RF for three years (the 2025 order).

Later that month, the local authority made an application for recognition and enforcement of that order under Sch 3 MCA 2005.

In April 2025, the Court of Protection 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, 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).

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.

Further to a series of hearings in the Sheriff Court in June and July 2025, the local authority application to reduce the duration of the 2025 order from three years to one year was granted.

The local authority made an application to renew the 2025 order in January 2026 to the Sheriff Court.

The following month 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.

Mrs Justice Theis noted that 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.

She said: “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.”

In March 2026 the local authority made a COP9 application seeking recognition and enforcement of the 2026 order. The application was listed for hearing in June 2026.

Mrs Justice Theis observed there was now no issue between the parties that the 2026 order should be recognised and enforced.

She said: “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.”

She observed that RF was deprived of his liberty because he was confined to the placement, its doors were locked, he was supervised at all times, including on a 2:1 basis in the community, and he was placed in England against his wishes, as he wanted to return to Scotland and was unable to visit his family in accordance with his wishes. His Article 5 rights were therefore “clearly engaged”.

However, the court found that the requirements of Article 5(4) were now met – evidenced by the monthly visits to RF by the advocate, the advocate reporting to the safeguarder following the visits and the three-monthly meetings between the advocate and the safeguarder.

Concluding the case, Mrs Justice Theis said: “Drawing all the threads together I am satisfied:

1. RF is an adult for the purposes of Schedule 3 to the Mental Capacity Act 2005 ("MCA 2005").
2. 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.
3. The Protective Measures were taken on the basis that RF was habitually resident in Scotland.
4. 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.
5. 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.
6. 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.
7. Recognition of the Protective Measures:
   1. would not be manifestly contrary to public policy; and
   2. would not be inconsistent with a mandatory provision of the law of England and Wales.

“In those circumstances the order dated 13 February 2026 will be recognised and enforced under Schedule 3 MCA 2005.”

Lottie Winson