A sheriff is directed to grant a guardianship order initially “for a period of three years or such other period (including an indefinite period) as, on cause shown, he may determine” (s58(4) of the Adults with Incapacity (Scotland) Act 2000: all references below are to that Act, except where otherwise stated.)

Sheriff John K Mundy at Falkirk has issued a written judgment addressing more fully than hitherto the considerations relevant to determining duration of a guardianship order, and in particular whether, on the facts of the case before him, it should be granted for less than three years. He addressed the questions of onus; of balancing elements relevant to the principle in s1(3) requiring the least restrictive effective intervention in relation to the adult’s freedom; the implication of the “acting” element of the definition of incapacity (s1(6)(a)); and the appropriate focus where there were related child welfare issues.

Falkirk Council applied for a guardianship order appointing their chief social work officer as welfare guardian to S for a period of three years. S opposed, but only as regards the duration of the order, which she contended should be limited to one year. At the time of the hearing in November 2013 she was aged 34. She had a learning disability. She had two children, G and A, to different fathers with both of whom she had had difficult relationships, and by the time of the hearing both children were in local authority care. Her adoptive mother was deceased and her relationship with her adoptive father had deteriorated. On 14th June 2013 the sheriff had granted a Removal Order under s293 of the Mental Health (Care and Treatment) (Scotland) Act 2003 as a result of which S was removed to M Care Centre.

On onus, the sheriff refused to accept that there was any onus on a party proposing a period of less than the three-year “norm”: “It seems to me, bearing in mind the principle of ‘the least restrictive option’ (on the hypothesis that intervention is justified), that it would be difficult to argue that there was a legal burden on a party who submitted for a lesser period of intervention.” More generally, where issue had been joined as to duration it seemed to the sheriff “to be unhelpful to think in terms of onus.” The court’s task “must ultimately be to consider what the appropriate period is having regard to the principles contained in the Act.” In applying s1(3), on the one hand a shorter period could be said to be less restrictive, but the sheriff referred to Adrian’s comment in relation to s58(4) in “Adults with Incapacity Legislation” that requiring everyone to go through the renewal procedure more frequently than necessary could be contrary to the benefit principle. The potential impact on the adult of a renewal application was relevant. The sheriff referred to the observations of Sheriff Thornton in Application in respect of the adult JMR (Kirkcaldy Sheriff Court, 27th February 2013 at para 20). In the present case, he identified as further disadvantage of a shorter period that S’s knowledge that the order was only for a year could cause her – as she was reported to have said – to “keep the head down” for that period, thus inhibiting the progress of her rehabilitation. She was “at risk of being taken advantage of”, and it would be “a slow process in order to ensure her safety in the community without support.” Sheriff Mundy quoted evidence of a consultant psychiatrist that he “did not think she would work with a one year order even if she agreed with that.

The importance of the element of “acting”, including acting in accordance with otherwise potentially competent decisions, was emphasised by the Mental Welfare Commission in the D Report.” In the present case, the sheriff accepted evidence of S’s frequent inability to act consistently with decisions. Looking only to her expressed decisions, it might have been doubtful whether she was incapable so as to warrant the order sought.

The sheriff did not feel that he “could attach a great deal of weight to the proposition that a shorter order would allow S a greater opportunity to play a significant part in A’s upbringing.” In “Two ‘adults’ in one incapacity case?: thoughts for Scotland from an English deprivation of liberty decision”, 2013 SLT (News) 239, 

Adrian suggested that the section 1 principles should be applied to any adult within the wording of s1(1), which might be a “second adult” in addition to the adult regarding whom proceedings had been brought. This view could not apply to a person under 16, and thus not an “adult” in terms of the Act. A parent-child relationship would however be likely to engage the benefit principle (s1(2)), the wishes and feelings of the adult (s1(4)(a)), and the views of the child (s1(4)(d)). Sheriff Mundy did not refer to such considerations. He referred to evidence that the “concern was S’s welfare and safety rather than any issues relating to her child” and that “this application was about S, not her child.” Sheriff Mundy accepted, on the basis of evidence adduced, that “the first concern was to achieve stability for S,” upon achievement of which “S’s parenting ability in relation to A could be re-assessed.

The Judgment does not refer to Article 12.4 of the UN Convention on the Rights of Persons with Disabilities of December 13, 2006, which provides that “measures that relate to the exercise of legal capacity” should “apply for the shortest time possible.