In Argyll and Bute Council v RF (No 2) (Registration under Sch 3 MCA 2005) [2026] EWCOP 41 (T3), the Court of Protection recognised and enforced a Scottish guardianship order authorising the deprivation of liberty of a vulnerable adult placed outside his home jurisdiction. Connor Hegarty, Senior Associate in our Regulatory team, was instructed on behalf of the applicant local authority, Argyll and Bute Council, in securing this outcome.
Background
RF is a 65-year-old man with a long-standing history of challenging behaviour, cognitive impairment, learning disabilities and a personality disorder. Though originally from Scotland, a series of breakdowns in placements, hospital admissions and a period in custody led to him moving into a placement in London in December 2023. This was always intended to be temporary, while a more suitable placement closer to his family in Scotland was found.
RF lacks the capacity to make decisions about his residence, care and support. Therefore, the local authority sought to protect RF through the Scottish guardianship regime, which allows a guardian to be appointed to make welfare decisions on an adult’s behalf, including authorising a deprivation of liberty. As RF was living in England, the local authority needed the Court of Protection to recognise and enforce that Scottish order under Schedule 3 to the Mental Capacity Act 2005 (“MCA 2005”).
Why was the first application refused?
This was the Court of Protection’s second consideration of Argyll and Bute Council’s application under Schedule 3 to the MCA 2005. In RF (1) (April 2025), the court refused to recognise the 2025 order because the court found that RF had not been made a party to the Scottish proceedings, had no independent advocate or safeguarder appointed to represent him, and had relied entirely on third parties to put his views and circumstances before the court and was not present when the original order was made for three years.
The court deterimined this fell short of the safeguards required under Article 5 of the European Convention on Human Rights, which protects a person’s right to liberty and requires that anyone facing a deprivation of liberty has an effective opportunity to be heard.
How was the order changed second time around?
Following the refusal, the local authority renewed an application in January 2026 at the Sherrif Court in Scotland and successfully obtained a fresh guardianship order on 13 February 2026.
Unlike the 2025 order, RF was present and legally represented by a safeguarder when the new order was made, was supported by an independent advocate, and the order was limited to one year rather than three.
The Court also found that the 2026 order now provided an effective review structure: including monthly visits by an advocate, three-monthly liaison between the advocate and the safeguarder, and confirmation that the safeguarder could apply to vary or discharge the order (with a realistic prospect of legal aid being secured for RF) if circumstances changed.
The Official Solicitor, representing RF, supported the renewed application once this evidence was before the court and there was no dispute between the parties by the time of the final hearing.
The Court’s decision and reasoning
Mrs Justice Theis held that the 2026 order’s one-year duration was consistent with the relevant framework for authorising deprivation of liberty in England and Wales. While not determinative, it is considered this comparison to be a relevant factor. RF would also have a regular right of review before the Sheriff Court, sufficient to comply with Article 5(4) ECHR.
The court then considered paragraph 19 of Schedule 3 MCA 2005, which provides for recognition in England and Wales of a protective measure made under the law of another country where the adult is habitually resident there.
The court was satisfied that the requirements of Schedule 3 MCA 2005 and Article 5 ECHR were met, including that RF had a proper opportunity to be heard and that recognition would be neither contrary to public policy nor inconsistent with mandatory provisions of English law. The 13 February 2026 order was therefore recognised and enforced.
Why it matters
This decision is a useful illustration for local authorities managing cross-border care arrangements involving adults who lack capacity. Where a person subject to a deprivation of liberty is placed away from their home jurisdiction, the framework of protective measures relied upon must give them a genuine, independent voice – both when the original order is made and throughout its lifetime. A right of review that exists on paper but depends on the detaining authority’s own initiative will not be sufficient.
It confirms that the English court will conduct a limited but careful review of such orders, focusing on whether the individual had an effective opportunity to be heard and whether an independent, adequately funded mechanism exists to challenge the order if their circumstances change.
How we can help
This case demonstrates the value of specialist advice in cross-border Court of Protection matters. We can advise clients navigating complex cross-border disputes in the Court of Protection, including applications for recognition and enforcement of foreign protective measures, jurisdictional disputes over habitual residence, and the interplay between the Mental Capacity Act 2005 and equivalent regimes such as the Adults with Incapacity (Scotland) Act 2000.
