Family Justice and Mental Incapacity

Family Justice is concerned with the regulation of personal rights and obligations between family members. The definition of these obligations and relationships vary greatly between jurisdictions, for example, does the law stress control of or support for the vulnerable? But there is a commonly expressed aim to support the family group and protect the vulnerable individual. This is important when dealing with decision making by the elderly which could affect the future disposal of family property, or when plans are made to simply look after a disabled young person to provide more support to enable the young person to live a more fulfilling life. We will also examine the mechanisms used in different jurisdictions to access and implement the law, and how they work in practice. For example, in England we have a separate Court of Protection, staffed by family judges, but with involvement of welfare authorities and the legal professions, We ask how does a vulnerable person find such help? what does it cost? who will pay? who gives the help? what do they do?

Legislation for children in many jurisdictions has led to a comprehensive network of support, while provision for vulnerable adults has often been limited to the requirement for substitute decision makers, and some regulation of the way care is provided for the elderly who lack mental and thus legal capacity by the medical and caring professions. But there have recently been substantial developments of instruments to protect the human rights of the disabled notably the signing of the Convention on the Rights of Persons with Disability, (CPRD) in 2007which followed the Hague Convention of 2000 on the International Protection of Adults, including deprivation of liberty safeguards in welfare settings.

As sociologists of law we seek to examine the context underlying the legal structures to discover the values and choices they represent, the way they are used, and the impact achieved in what we perceive to be the important matter of regulating and fulfilling intergenerational family obligations.

Key themes include the definition of legal capacity, access to justice, organisations and personnel involved, the kinds of cases requiring support or experiencing control, and the outcomes which follow.

The situations and responses vary greatly in the countries taking part in the proposed Workshop, which include England, Wales, Scotland, Germany, Bulgaria, France, Germany, Canada, Australia, Netherlands, Poland and Spain. We have been encouraged to call this meeting by the Official Solicitor from London whose office celebrated its 150th anniversary in 2021, and who wishes to discuss the disparate ways of responding to vulnerability occurring internationally at this time.

To facilitate our discussion we may pre circulate and discuss a number of vignettes outlining a typical situation for each country. These could act as a proxy and prelude to further empirical work. The themes may include access to justice, enabling versus controlling, the independence of the medical and caring professions, intergenerational obligations, and issues arising in a diverse society at a time of austerity and pandemic.

For example, consider the reported English case of Mr P, an elderly gentleman with a degree of dementia living alone with his cat. Social services were alerted, and came and told him they were taking him to a nice hotel. He objected, so they said the police would come, and he by social services to a secure unit. A year later, through friends alerting the OS, the court found that there were no grounds for holding MrP and he was sent home and later received £60,000 in compensation for wrongful deprivation of liberty. In another case a young girl, thought to have been trafficked, arrived in the UK pregnant and gave birth to a premature baby. The local authority took the child into care, but then asked the OS to support the girl in asking the court to order the local authority to agree that she should stay in touch with her child.

This indicates the complexity and range of circumstances which can affect the vulnerable who lack mental capacity. We hope that by discussing both cases and principles that we may help to develop a close relationship between family law and the law of protection and care, to the benefit of both.