Recognition of Scottish Guardianship Orders in England and Wales after RF: A Blueprint for Article 5 ECHR Safeguards

The Court of Protection’s decision in Midlothian Council v DM [2025] EWCOP 61 (T3) (“DM”) provides a helpful and practical counterpoint to the earlier decision in Argyll and Bute Council v RF [2025] EWCOP 12 (T3) (“RF”). In RF, the Court refused to recognise a Scottish Guardianship Order where it was not satisfied that sufficient safeguards were in place to protect the adult’s rights under Article 5 ECHR.

The judgment is significant for Scottish and English local authorities involved in cross-border placements. It confirms that RF is not an automatic barrier to recognition of Scottish Guardianship Orders in England and Wales. However, it also makes clear that where such an order authorises, or has the effect of authorising, a deprivation of liberty, the Court of Protection will scrutinise the practical safeguards surrounding the adult’s Article 5 rights. The central message is that safeguards must be real and effective, not merely theoretical. In DM, in which Brodies acted for Midlothian Council, the Court of Protection was satisfied that the local authority had been “creative” in addressing the concerns raised in RF.

The RF aftermath

In RF, the Court of Protection refused recognition of a Scottish Guardianship Order under Schedule 3 to the Mental Capacity Act 2005. The adult was living in England and was subject to continuous 2:1 supervision and control and was not free to leave the placement, with these arrangements amounting to a deprivation of liberty. The Court was concerned that the adult, RF, had not been given an effective opportunity to be heard in the Scottish proceedings, had not had independent representation or a safeguarder, and that the order did not provide a sufficient mechanism for review.

The Court in RF identified the Article 5 safeguards that are required where a protective measure authorises deprivation of liberty. These include sufficient evidence of mental disorder, evidence that confinement is necessary and proportionate, an effective opportunity for the adult to be heard, access to speedy court review, regular review, and effective independent representation throughout the period of confinement.

That decision created obvious practical concern for authorities managing cross-border placements. The issue after RF was not simply whether a Scottish Guardianship Order could authorise a deprivation of liberty, but whether recognition in England and Wales would be compatible with the adult’s Convention rights.

Why DM matters

The Court of Protection’s judgment in DM offers helpful guidance on how to navigate these issues. The case concerned a 28-year-old adult who was habitually resident in Scotland but living in a specialist placement in England. The Scottish Guardianship Order made by Edinburgh Sheriff Court included powers relating to where DM should live, his level of care and supervision, and restrictions which had the practical effect of authorising a deprivation of liberty.

What distinguished DM from RF?

The Court of Protection made clear at the outset of the judgment that this case was “significantly different” from RF. Following the concerns raised in that earlier decision, Midlothian Council had implemented a detailed advocacy support framework designed to ensure that DM had practical and effective means of challenging the restrictions placed upon him.

A key feature of the arrangements was the appointment and funding of an independent advocate. Under the advocacy plan, the advocate would meet with DM every four to six weeks, discuss whether he remained content with the deprivation of liberty arrangements, identify any concerns regarding his care and ensure he understood his ability to seek are view of the guardianship order.

Importantly, the evidence also addressed the practical steps that would be taken should DM wish to challenge the order. Midlothian Council confirmed that legal advice could be arranged and funded, solicitors could be instructed irrespective of the Council’s own view of the merits of any challenge, and assistance would be available to navigate the Scottish court process.

The Court was also provided with evidence regarding the availability of a curator ad litem or other independent representative in Scottish proceedings where necessary to safeguard DM's interests.

Decision

On that basis, the Court of Protection concluded that DM had been afforded an effective opportunity to participate in the Scottish guardianship proceedings. He had attended the renewal hearing before the Sheriff Court and had the benefit of a safeguarder whose role was to ascertain and present his views.

In considering the position going forward, the Court was satisfied that the advocacy arrangements established by Midlothian Council provided genuine and practical safeguards for DM's Article 5rights

The judge described the framework adopted by Midlothian Council as an “impressive and creative” response to the concerns identified in RF. Particular emphasis was placed on the fact that the arrangements gave DM real, rather than theoretical, access to legal advice, independent advocacy and the courts.

The Court therefore held that recognition of the Scottish Guardianship Order would not be contrary to public policy and would not be inconsistent with the law of England and Wales. The order was recognised and enforced pursuant to Schedule 3 to the Mental Capacity Act 2005.

Implications for local authorities

The decision will be of particular interest to local authorities, and especially Scottish local authorities, responsible for adults subject to welfare guardianship orders who are placed in England.

While RF raised concerns regarding whether Scottish Guardianship Orders authorising deprivations of liberty could satisfy the requirements of Article 5 ECHR for the purposes of recognition in England and Wales, DM demonstrates that those concerns are not insurmountable.

The case highlights the importance of ensuring that adults subject to Guardianship Orders have:

• access to independent advocacy;
• regular opportunities to express views about their care and restrictions;
• funded routes to legal advice and representation;
• practical mechanisms for seeking review of guardianship orders; and
• safeguards that operate independently of the local authority’s own assessment of whether a challenge is justified.

Perhaps most significantly, the judgment provides a practical blueprint for local authorities seeking recognition of Scottish Guardianship Orders that authorise a deprivation of liberty. The presiding judge noted that it was hoped that reporting Midlothian Council’s approach would assist other public authorities in developing effective mechanisms to address the Article 5 concerns identified in RF.

For practitioners involved in cross-border incapacity and adult protection matters, DM represents an important development in the evolving relationship between the Scottish Guardianship Order and the Court of Protection's obligations under the ECHR. It also provides welcome clarity regarding the types of safeguards that will be required before Scottish Guardianship Orders authorising a deprivation of liberty can be recognised and enforced in England and Wales.

How can Brodies help?

If you would like to discuss how this case may affect you or your organisation, please contact Fiona McLeod, Richard Pike or your usual Brodies contact.