In England and Wales, the Court of Protection plays a crucial role in dealing with personal injury cases involving people who lack mental capacity to make decisions for themselves, including children. The measures implemented by the Court of Protection ensure that the rights of the incapacitated person are prioritised while also providing a means for seeking compensation in cases of personal injury. However, across the border, there is no Court of Protection in Scotland. The legal framework in Scotland is currently under review by the Scottish Law Commission. 

The SLC published a Discussion Paper on Damages for Personal Injury with its findings expected to be published in 2024. The Paper covers four main topics including the management of damages for personal injury awards to children. An area of discussion is whether there should be some independent oversight of children’s awards of damages for personal injury placed in trust, to bring it in line with the position relating to adults with incapacity. 

While the SLC findings are awaited, it is important to note there have been some recent developments with potential influence on the legal framework behind guardianship orders in Scotland. 

In particular, the case of Aberdeenshire Council v SF (No 2) [2024] EWCOP 10. The court was required to decide whether to recognise and enforce a Scottish Guardianship Order as a protective measure in England and Wales. The SGO was made in favour of SF’s mother and father, allowing them to consent to arrangements amounting to a deprivation of SF’s liberty. 

Poole J looked to the legal framework in Scotland and the interaction with Schedule 3 of the Mental Capacity Act 2005. In particular, the legality of the SGO. It was reiterated that the court has a discretionary power to refuse to recognise a protective measure if certain procedural safeguards are not met. Poole J, during his limited review of the SGO, considered that the provisions of the SGO, including the deprivation of liberty and control over SF’s residence, were draconian and contrary to public policy. He accordingly exercised his discretion and declined to recognise and enforce the SGO. 

This case not only highlights the need for procedural safeguards for incapacitated individuals in guardianship orders but it has wider implications for Scotland. It highlights the need for clear legal frameworks to facilitate the cross-border enforcement of guardianship orders. Such implications could influence future legislation and decisions relating to cross-border implementation of SGOs, potentially leading to more robust protections for incapacitated individuals including children. Further consideration will need to be given once the SLC findings are published.