A.F. v. M.S. (first respondent) & PGS (Second Respondent)

Factual and Procedural Background

This opinion concerns a Summary Application under the Adults with Incapacity (Scotland) Act 2000 brought by the Applicant, the daughter of an Adult residing temporarily in Scotland but originally domiciled in France. The Applicant sought recognition and registration in Scotland of two protective orders issued by the Court of Instance at Cagnes Sur Mer, France, dated 19 October 2010 and 7 October 2011, under the provisions of the Hague Convention on the International Protection of Adults. The French orders placed the Adult under court protection due to incapacity, appointing a guardian and revoking prior Powers of Attorney.

The Adult had travelled from France to Scotland in late October 2010 and granted a Power of Attorney in Scotland shortly thereafter, which was registered with the Scottish Office of the Public Guardian. The Respondents included the Adult and the holder of the Power of Attorney. There was a family dispute involving the Adult's children from previous marriages, and questions arose regarding the Adult’s habitual residence and domicile, with the Respondents contending that by 2011 the Adult was domiciled and habitually resident in Scotland, thus challenging the jurisdiction of the French court for the 2011 order.

The court appointed a Safeguarder to report on the Adult’s welfare and ordered service of the application on relevant parties. The hearing took place at Selkirk Sheriff Court on 15 December 2011, with submissions from both parties and observations from the Office of the Public Guardian. The court considered issues of jurisdiction, enforceability, public policy, and the applicability of the Hague Convention and the Adults with Incapacity (Scotland) Act 2000.

Legal Issues Presented

1. Whether the Scottish court should recognize and register the French protective orders under the Adults with Incapacity (Scotland) Act 2000 and the Hague Convention on the International Protection of Adults.
2. Whether the French court had jurisdiction to make the 2011 order given the Adult’s asserted change of habitual residence and domicile to Scotland.
3. Whether recognition or enforcement of the French orders would be manifestly contrary to public policy in Scotland.
4. The validity and enforceability of the French orders in light of pending appeals and procedural issues in France.
5. The appropriate status of the Power of Attorney granted in Scotland post-dating the French protective order and whether it should be revoked.

Arguments of the Parties

Respondents' Arguments

• Conceded the French court had jurisdiction for the 2010 order but denied jurisdiction for the 2011 order due to the Adult’s domicile and habitual residence in Scotland by that time.
• Asserted the Adult’s initial travel to Scotland was for a visit, questioning the validity of the Power of Attorney granted shortly after arrival, especially since the French order revoked prior powers.
• Raised public policy objections, including alleged breach of the Adult’s human rights due to lack of opportunity to be heard in France.
• Argued for minimum intervention consistent with Scottish law, contending it was inappropriate to impose the French regime on the Adult now resident in Scotland.
• Contended that the court should not recognize or enforce the French orders pending determination of the appeal in France and outstanding procedural matters, including service of the 2011 order.
• Requested a timetable for pleadings and a substantive evidential hearing lasting several days to address these issues.

Applicant's Arguments

• Asserted full faith and confidence in the French orders and the French court’s jurisdiction based on the Adult’s habitual residence at the time of the 2010 order.
• Submitted that under the Hague Convention and the Adults with Incapacity Act 2000, the Scottish court must recognize foreign protective measures without reviewing their merits.
• Emphasized that public policy exceptions to recognition are narrowly construed and do not permit re-examination of the French court’s findings.
• Argued the French orders are enforceable and currently being enforced in France, with only minor procedural matters outstanding regarding service of the 2011 order.
• Highlighted that the Adult and her representatives have failed to engage with the French proceedings and that the Scottish court should not delay recognition and registration.
• Relied on case law (Re MN 2010 EWHC 1926) to support the principle that recognition should only be refused if manifestly contrary to public policy, a high threshold not met here.
• Contended the Power of Attorney granted in Scotland post-dated the French order and was inconsistent with it, justifying revocation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re MN [2010] EWHC 1926 (Fam)	Clarification of the public policy exception to recognition of foreign protective orders; recognition should only be refused if manifestly contrary to public policy.	The court echoed the principle that recognition of a competent court’s protective order would rarely be repugnant to judicial conscience, thus supporting recognition of the French orders.

Court's Reasoning and Analysis

The court examined whether the French orders were measures taken under foreign law for the protection of an adult with incapacity and whether the French court had jurisdiction based on the Adult’s habitual residence at the time. It found the 2010 order met these criteria and was enforceable in France. The court emphasized the statutory framework of the Adults with Incapacity (Scotland) Act 2000 Schedule 3 and the Hague Convention, which require recognition of foreign protective measures unless doing so would be manifestly contrary to public policy.

The court rejected the Respondents’ attempts to reopen the merits of the French orders, noting that such review is excluded by the Act and the Convention. It observed that the public policy exception is narrowly construed and requires circumstances repugnant to judicial conscience, which were not demonstrated here.

Regarding the 2011 order, the court acknowledged outstanding procedural matters concerning service and therefore continued that part of the application until confirmation of proper intimation. The court also revoked the Power of Attorney granted in Scotland post-dating the 2010 French order, finding it inconsistent with the protective regime established by the French court and necessary to preserve the Adult’s estate.

The court expressed concern over the Adult’s removal from French jurisdiction, the timing of the Scottish Power of Attorney, and the failure to appear in French proceedings, highlighting these as prima facie troubling facts but not sufficient to deny recognition under the applicable legal framework.

Holding and Implications

The court GRANTED the Applicant’s request to recognize and register the 19 October 2010 French protective order in Scotland in accordance with the Adults with Incapacity (Scotland) Act 2000 and the Hague Convention. It CONTINUED the application for recognition and registration of the 7 October 2011 order pending confirmation of proper service.

The court REVOKED the Power of Attorney granted by the Adult in Scotland post-dating the 2010 French order and ordered notification of this revocation to the Office of the Public Guardian.

The court refused to entertain the Respondents’ pleas that sought to challenge the merits of the French orders or delay recognition on public policy grounds, emphasizing the limited scope for such review under the statute and treaty.

These decisions ensure the enforcement of foreign protective orders in Scotland consistent with international obligations and Scottish law, while safeguarding the Adult’s interests. No new precedent was established beyond the application of existing statutory and treaty principles.