CW v Hartlepool Borough Council and Scottish Borders Council

Summary

CW, aged 33, had emotionally unstable personality disorder, cognitive deficits and epilepsy. In December 2022 Scottish Borders Council placed her in a care home in Hartlepool under a three-year welfare guardianship order made by Jedburgh Sheriff Court. The placement was intended to be temporary whilst alternative placements closer to home were being sought. No application was made to recognise and enforce the order under Schedule 3. When the care home sought a DoLS authorisation in February 2023, Hartlepool initially rejected the request because it had not placed CW but ultimately granted a standard authorisation in March 2023 and a subsequent authorisation was challenged s.21A in June 2025. Two months later the guardianship order expired unrenewed, Scottish Borders having been unable to obtain the medical report needed to renew it.

In October 2025 HHJ Boothroyd declared, on an agreed but ‘finely balanced’ basis, that CW remained habitually resident in Scotland. Scottish Borders duly applied to the Sheriff Court for a fresh order in January 2026. The Sheriff found that CW consistently did not want to return to Scotland, that the council had no intention of moving her and that there was no suitable placement north of the border, and on 29 May 2026 dismissed the application for want of jurisdiction. Scottish Borders then came to the Court of Protection – which had meanwhile been authorising CW’s deprivation of liberty under paragraph 7(1)(d) of Schedule 3 – for a declaration that CW was now habitually resident in England and Wales. CW, through the Official Solicitor, supported that; Hartlepool was neutral.

Applying the principles summarised in Aberdeenshire Council v SF [2023] EWCOP 28, and noting that an earlier determination did not prevent the court revisiting the question (Neath and Port Talbot CBC v CK [2025] EWCOP 47), Theis J held that CW’s habitual residence had moved to England (paragraph 59). None of the factors was determinative but together they support that conclusion: over three and a half years in Hartlepool; a placement no longer regarded as temporary, with no active search for alternatives; the council’s own change of position, accepted by the Sheriff; and CW’s now stable wish not to return to Scotland, even though she described the care home as a “mental prison” and her room as a “cell” and wanted to live elsewhere in Hartlepool. Her integration in the community was minimal but, as the judge observed, a deprivation of liberty regime “by definition limits her ability to integrate” The court cautioned against placing too much weight on the passage of time, or on any suggestion that a person is ‘settled’, where they are subject to compulsory confinement (paragraph 58). CW’s ordinary residence, in contrast, remained in Scotland under Schedule 1 to the Care Act 2014, so Scottish Borders continued to fund and case-manage the placement (paragraph 51).

Of wider significance is the agreed list of good practice points for cross-border placements which Theis J endorsed with “modest modifications” (paragraphs 14-20). Before placing, the Scottish authority should follow Chapter 21 of the Care and Support Statutory Guidance and notify the English authority. After placing, there should be a “timely application” for recognition and enforcement under paragraph 19 of Schedule 3 “to provide a clearly understood legal framework for decision making;” the receiving authority should be told of any deprivation of liberty, which can be drawn to its attention through the unauthorised deprivation of liberty route in paragraphs 67-73 of Schedule A1; the RF requirements and the DM measures should be considered, along with Articles 6 and 8 ECRH, even where Article 5 is not engaged; habitual residence should be kept under review throughout; renewal should be considered in good time, with an application to the Court of Protection before expiry if habitual residence has shifted; and the judicial protocol for direct communications between the UK jurisdictions should be used to share determinations, particularly on habitual residence, without delay.

Comment

The guidance at paragraph 15 perhaps deserves a caveat. Scottish Borders’ solicitor described it as ‘unfortunate’ that the 2022 order was never ‘ratified’ in England (paragraph 45), and the good practice list treats a Schedule 3 application as a matter of course. But such active steps in relation to a Scottish guardianship order are only necessary if the guardian is going to insist on their decision-making authority in this jurisdiction.  In Scotland there is no equivalent of s.5 MCA 2005, which is why the guardian needs formal authority there (see Argyll and Bute Council v RF (No 2) [2026] EWCOP 41 (T3) at paragraph 45. However, the Adults with Incapacity (Scotland) Act does not limit the authority of the guardian by reference to the presence of the ‘adult’ in Scotland; further, by paragraph 19(1) of Schedule 3 to the MCA 2005, a ‘foreign’ protective measure taken on the basis of the person’s habitual residence in the other jurisdiction is recognised by operation of law.  There is, therefore, no need for any application under Schedule 3 so as to ensure the recognition of the status of guardian.  Once the adult is in England, s.5 MCA 2005 protects those delivering their care and treatment, and any deprivation of liberty is authorised by DoLS or the court.

Therefore, if the guardian is happy to let s.5 MCA 2005 take its course, and not to insist on their decision-making authority, the Scottish order can simply continue in the background without further formality. Thus, for three and a half years CW’s care and confinement in Hartlepool were lawful on the basis of s.5 MCA and Schedule A1, not the Jedburgh order, and the order’s expiry in August 2025 changed nothing on the ground. Recognition – and more to the point a declaration of enforceability – matters where: (1 the guardian wants to do something that s.5 does not cover – eg to override the English decision-makers or to convey the adult back across the border against their will; or (2) where the order itself is to be relied upon as the authority for the deprivation of liberty, at which point the Article 5 scrutiny in RF(1) and DM is required.

Two other points are worth noting. For someone not ordinarily resident in the area of any English or Welsh local authority, the DoLS supervisory body is the local authority for the area in which the care home is situated (Schedule A1, paragraph 182(3)), and paragraph 16 of the guidance now spells out how an unauthorised deprivation of liberty should be brought to the receiving authority’s attention. Second, the case illustrates how habitual residence and ordinary residence can part company: the Court of Protection now has jurisdiction over CW’s welfare while a Scottish council, whose Sheriff Court has disclaimed jurisdiction, remains responsible for funding and managing her care. It also shows the ratchet by which a ‘temporary’ placement becomes a permanent one – not by decision, but by the absence of one. Once the Sheriff had declined jurisdiction, it is difficult to see what other conclusion was open; the alternative was a legal vacuum filled indefinitely by paragraph 7(1)(d).