Argyll and Bute Council v RF (No 2)

Summary

Sixteen months after the application for recognition and enforcement of RF’s Scottish guardianship order foundered in Argyll and Bute Council v RF [2025] EWCOP 12 (T3) (‘RF(1)’), the council returned with a new order and succeeded. Although by the time of the hearing the Official Solicitor supported the application, Theis J considered it important to set out why the second attempt succeeded where the first had failed.

RF, aged 65, had a learning disability and a personality disorder. Born and raised in Scotland, where his two siblings still live, he had been at a placement in London since December 2023 following a series of failed Scottish placements, hospital admissions and six months in prison. The doors were locked, he was supervised at all times (2:1 in the community), he wanted to return to Scotland and he could not visit his family as he wished, so he was deprived of his liberty on the multifactorial test in Attorney General for Northern Ireland’s Reference (Deprivation of Liberty) [2026] UKSC 16 (paragraph 76). He remained habitually resident in Scotland. In RF(1) the court had refused to recognise a three-year order because RF had not been given an opportunity to be heard, which was a breach of natural justice (Schedule 3, paragraph 19(3)), and because recognition would have been inconsistent with a mandatory provision of the law of England and Wales and manifestly contrary to public policy (paragraph 19(4)). In the meantime the Court of Protection continued to authorise his deprivation of liberty under its temporary jurisdiction in paragraph 7(1)(d) of Schedule 3 (paragraph 19).

The council went back to the Sheriff Court. The 2025 order was first reduced from three years to one and then, on 13 February 2026, a fresh one-year order was made re-appointing the Chief Social Work Officer as welfare guardian with powers including residence, conveyance and return, access, the level of care and supervision, and restraint. This time RF was present and represented by a legally qualified safeguarder, appointed for the duration of the order; the Sheriff had psychiatric and mental health officer reports and a report from an independent advocate commissioned by the council. Two statements from the safeguarder explained the review machinery: the advocate visited RF monthly and reported to the safeguarder; advocate and safeguarder conferred every three months; the safeguarder could act of her own motion, including by applying for recall or variation under ss.71 and 74 of the Adults with Incapacity (Scotland) Act 2000, independently of the council; and she was ‘confident’ that legal aid would be granted for any such application.

Measured against the seven Article 5 requirements distilled in RF(1) at paragraph 56 (repeated at paragraph 57), Theis J was satisfied that the one-year duration now aligned with the MCA 2005 framework in this jurisdiction which, whilst not a determining factor, was a relevant consideration and a “useful guide” to the reasonable interval for review (paragraphs 73, 78). The internal review structure required by Article 5(4) was provided by the monthly visits, the reporting and the quarterly meetings (paragraph 79), and RF’s ability to take proceedings was secured by the safeguarder’s standing, independence and likely funding (paragraph 80). RF had been heard for the purposes of paragraph 19(3), the Winterwerp criteria were met, and recognition was neither manifestly contrary to public policy nor inconsistent with a mandatory provision (paragraph 81). The order was recognised and enforced; Theis J also made clear that paragraphs 18 and 19 of Mostyn J’s Schedule 3 checklist in Re SV [2022] EWCOP 52 should be updated accordingly (paragraph 83).

Comment

Read with Midlothian Council v DM [2025] EWCOP 61 (T3),[1] this decision completes the picture. Two models of Article 5 compliance have now passed muster: Midlothian’s review clause on the face of the order plus council-funded advocacy and litigation, and now Argyll and Bute’s legally qualified safeguarder appointed for the life of a one-year order, with a monthly advocate and with a route back to the Sheriff Court funded by the Scottish Legal Aid Board. The common denominators are a twelve-month order, the adult present and independently represented when it is made, somebody independent seeing the adult regularly, and a real (and funded) means of getting back to court. Scottish authorities placing adults in England should no longer be arriving at the Court of Protection with the bare three-year order that failed in SF and RF(1).

Two features nonetheless merit attention. First, the Official Solicitor rightly pressed that where the same public body both confines and authorises, anxious scrutiny is called for even on a limited review, and that the 2026 order contained no specified limits on the deprivation of liberty of the kind an English order would carry (paragraph 63): what has been recognised includes open-ended powers to convey, return and restrain. Second, the funding of any challenge rests on the safeguarder’s confidence that legal aid would be granted rather than on a guarantee. That was enough here, but it is less than the council’s unconditional commitment in DM, and the advocate on whom the monthly monitoring depends is commissioned by the detaining authority.

Perhaps the more sobering point is chronological. Proceedings began in May 2024, RF has been confined in London against his wishes on interim authorisations for over two years, and the placement in Scotland to which everyone agrees he should return has still not been found (paragraphs 17, 75). Recognition and enforcement gives his detention a lawful framework but it has not got him home (yet).

[1] A decision which did not make its way to the archives until July 2026, for some reason.