Greater cross-border collaboration and communication in cases involving adults who lack capacity has been formalised between the relevant judiciary with the publishing of a new protocol.
Signed representatives from Scotland (Paul Cullen The Rt Hon Lord Pentland, Lord President of the Court of Session), England and Wales (Rt Hon Sir Andrew McFarlane, President of the Court of Protection) and Northern Ireland (The Rt Hon Dame Siobhan Keegan, Lady Chief Justice of Northern Ireland) the protocol sets out the key principles of how cross-jurisdictional communication should be conducted.
The protocol acknowledges the increasing number of proceedings which take placed involving adults who lack capacity across different jurisdictions. Critically for the purposes of the judiciary, The Hague Convention on the International Protection of Adults has been ratified by Scotland but not England & Wales or Northern Ireland, resulting in ‘an absence of mechanisms to facilitate and encourage collaborative decision making of this kind.’
The issue is ‘compounded’ adds the protocol by the limited understanding of how other judicial systems operate.
Following a series of meetings between 2019 and 2024 the protocol was drawn up with the aim of enabling judges to ‘communicate on a cross-jurisdiction basis and to provide a framework for the mutual exchange of information through a centralised procedure.’
Accompanying the newly published protocol is a Handbook on law relating to Adults Who Lack Capacity in England & Wales, Scotland, and Northern Ireland, providing an overview of the different legal frameworks in place across the Court of Protection in England and Wales, Sheriff Court in Scotland, and Office of Care and Protection – Family Division in Northern Ireland.
The protocol sets out direct judicial communications are to be conducted using a request form sent to the relevant office.
The Judicial Protocol regulating direct judicial communications between Scotland, England & Wales and Northern Ireland, in cases of adults who lack capacity is available now on the Courts and Tribunals Judiciary website, alongside the handbook and Request Form.
A similar protocol was launched in July 2018 to deal with judicial communications in cross border children’s cases and was updated in February 2023 to include Northern Ireland. In May 2025 a handbook on family law relating to children in Scotland and in England and Wales was added.
