Judge decides woman lacking capacity should remain in placement in England, rather than move to near family in Scotland

The Court of Protection has decided that a woman who lacks capacity should remain at a placement in North East England rather than return to her native Scotland, despite having close family there.

In his fourth judgment in the case, Mr Justice Poole said SF had thrived at her placement - named as X - to an unexpected extent but her residence in England made family visits difficult.

Distance meant it was impossible for her both to remain where she was happy and have close family contact.

The judge said SF is in her 40s and has moderate intellectual disability, autism spectrum disorder, associated periods of severe anxiety, and a diagnosis of difficult to treat schizoaffective disorder.

After a series of judgments, Poole J found SF had become habitually resident in the jurisdiction of England and Wales.

“She had made astonishing progress under the care of [provider] at her current community placement and had become integrated into a social environment in England,” he said.

There was no dispute over SF’s lack of capacity to make decisions about her care and whether she should remain in the north east of England or go to a placement nearer family in Scotland.

Poole J said: “There are risks, benefits, and disadvantages from either option and neither choice is obviously the right one for SF. In approaching this difficult choice, the court must apply the relevant statutory provisions under Mental Capacity Act 2005 (MCA 2005) s4, guidance from caselaw, and do its best to make a decision in SF's best interests.”

The Official Solicitor submitted the strongest factor in favour of a return to Scotland was the opportunity for more contact with her mother and brother but against that were the risks of another move, and that SF had flourished in England.

Poole J was told the risks of transition were great and were likely lead SF to “a prolonged period of anxiety and disruption”.

Balancing these factors led the Official Solicitor to conclude SF's best interests would be served by remaining in England receiving “the same care and support which she has been receiving to date, and which has proved so successful”.

Poole J concluded: “Assessing all the evidence relating to SF's wishes and feelings, I find that SF's wish is to remain living at X and to be cared for by her current care team.

“She does not want to leave X but she does want to continue seeing her mother and brother there. She has no great desire to return to Scotland itself and is very happy living at X in England.”

He added: “I recognise the sacrifice of time with her mother and family that will be suffered by SF if she remains at X but in my judgement what is more important to her and to her welfare are the care, support, and experiences she has between visits - they are what give her life the character that it now has.

“It is a life that she enjoys and wants to continue. Placement X is working for SF and it would be contrary to her best interests to remove her from it.”

Mark Smulian