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Background

The relevant statutory provisions are set out in the Schedule 3 of the Mental Capacity Act 2005 that were brought into effect by section 63 of the Mental Capacity Act 2005.

Section 63 of the Mental Capacity Act 2005 states the following:

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, and
(b) makes related provision as to the private international law of England and Wales.

Schedule 3 Part 4 paragraphs 19-22 Mental Capacity Act 2005 provides for the recognition and enforcement by the courts of England and Wales of orders made and certain other “protective measures” taken in foreign countries.

The primary provision is paragraph 19 which provides for a protective measure taken in relation to an incapacious 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. In addition, Paragraph 19 sets out the circumstances when this rule may be disapplied.

The leading judgment on Schedule 3 is Re PA, PB and PC [2016] Fam 67; [2015] EWCOP 38. It was held 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. 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).”

In addition, 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 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 s6 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.

The role of the court in this application is to consider, by way of a limited review in each case where an application for recognition and enforcement is made whether (1) the process whereby the order in question was made, and (2) the effect of that order, afforded sufficient protection for the EHCR rights of the individual who is the subject of the order.

Submissions

The Official Solicitor on behalf of RF submitted that the court should not recognise the 2025 Guardianship order as the grounds set out in paragraph 19(3) and (4) Schedule 3 MCA 2005 are both applicable for the following reasons:

• In relation to paragraph 19(3), RF was not joined as a party and did not have an independent advocate or safeguarder appointed.
• There was not an urgent need for the order and that given the lack of urgency this amounted to a breach of natural justice.
• In regard to paragraphs 19(4) (a) and (b) both limbs are established. Under the Human Rights Act 1998 the court is a public authority and is bound by the requirements of section 6(1).
• The 2025 Guardianship order does not comply with the requirements of Article 5(1) and (4) for the following reasons:
• The order was made for three years, the ECtHR has emphasised that those detained pursuant to Article 5(1)(e) are entitled to reviews at reasonable intervals.
• There is no effective avenue for challenging the detention in court nor any process for proper review during the three-year term.
• Article 5 (1) and (4) require independent representation for an individual deprived of their liberty.

The Local Authority argued that the 2025 Guardianship order can be recognised for the following reasons:

• RF was formally consulted by TY, a mental health officer, when he visited RF in December 2024.
• TY is employed by the local authority but that he was acting in an independent role.
• RF could apply to the Sheriff for recall of the Guardianship order. RF, or someone on his behalf, could raise his case with the Mental Welfare Commission, the Commission could itself recall the Guardianship order or apply to the Sheriff.