Virtual workshop on “Access to Family Justice and Legal Incapacity"
Coordinators: Mavis Maclean (University of Oxford)
Description of the meeting
Children by reason of their age, and adults by reason of a mental or physical infirmity which may be associated with advanced age who are deemed to lack legal capacity, are in many jurisdictions held to be in need of support and guidance when decisions are needed with respect to their health and welfare, or the management of their financial affairs. Most jurisdictions have a legal framework to provide protection for the interests of children, usually the responsibility of parents, where a suitable parent or guardian is not available. For the elderly and infirm there is perhaps a wider range of legal structures to ensure that the best interests of the vulnerable individual can be protected, but also the interests of those affected by actions of the vulnerable person. This aspect of access to justice is intimately related to family needs and obligations, but is seldom studied or discussed in the context of family law. We propose therefore to try to examine how the issues are framed in various jurisdictions , how the system works when a matter has arisen requiring a decision to be made in a court but a party lacks legal capacity to take part in legal process, and how this process sits alongside family justice.
We are grateful to Jens Scherpe from Cambridge for alerting us to the FL-EUR European Project on Empowerment and Protection of Vulnerable Adults and Family Law in Europe based in Vienna. We have received summary reports on the legal framework from Austria, Belgium, Bulgaria (VelinaTodorova) Croatia(Peter Sarcevic), Czech Republic, Denmark ,England and Wales (Lucy Series), Estonia, Finland, France (Prof Christine Bideau Garon), Germany(Nina Dethloff), Greece ,Hungary ,Italy, Lithuania, Norway, Poland ( Piotr Fiedorych), Portugal(Paula Tavora Vitor), Ireland (Geoffrey Shannon), Russia( Masha Antokolskaia), Scotland (Jane Mair), Serbia, Spain (Jordi Ribot), Sweden, Switzerland(Michelle Cottier) and the Netherlands( Wendy Schrama). And we have valued participation in the subsequent Conference” Autonomy and Protection of Adults: Striking the Right Balance” organised by FL-EUR and the University of Geneva in October 2021.
As sociologists of law we now wish to add to the legal analysis some consideration of the social aspects of access to justice and legal capacity: how does the system work in practice? what values underly the process? What are the key issues under discussion? What works well and what less well? How is the process regulated in legislation, provided and funded in practice, and what is the balance between support and control when substitute decision making is required? How are Human Rights defined and regarded? Does the legislation derive from concerns to protect a child? a vulnerable adult? the property of a family? or the professionals providing possibly unwelcome care?
We have received expressions of interest in this project from a number of jurisdictions and have tried to set out below some of the key issues for discussion by the invited participants:
The UK: there are two key pieces of legislation, the Children Act England and Wales 1989 provides for child protection, and the Mental Incapacity Act 2005 defines when an adult may be found to be lacking legal capacity and substitute decision making will be needed. Family or civil matters will be dealt with in the appropriate courts. And there is also a specialist Court of Protection for health and welfare matters for the mentally incapacitated where the Official Solicitor (OS) acts, as also in family courts and civil matters, as the litigation friend of last resort for those who lack legal capacity and no suitable friend or relative can be found. The current Mental Capacity Act 2005 was originally stimulated by a wish to protect doctors and careworkers from prosecution on providing unwelcome or inappropriate care, perhaps at the end of life, or residential care against the wishes of the vulnerable person. Sarah Castle, the current OS, in 2021, celebrated 150 years of her office, where Cheryl Morris is a member of her legal team. Both are currently particularly interested in the recovery of Family Courts after COVID, in the challenges for vulnerable parents in remote/hybrid hearings in child protection cases, and in the difference between vulnerable parents and those who lack capacity, as well as the difficult question of funding for parties. From the UK we could offer as cases for discussion a matter under the Mental Incapacity Act 2005 known as the case of Mr P and Fluffy the Cat. This demonstrates the limits in 2015 on deprivation of liberty in this jurisdiction in a judgement which involved questions about incapacity, substitute decision making, and Deprivation of Liberty Safeguards (DOLS) in a case where a 91 year old dementia sufferer ( with his cat Fluffy) was sent back to his home and given £60,000 as compensation for wrongful deprivation of liberty in a care home for over a year at the insistence of the local welfare authority , despite the use of the medical definition of MI in the legislation. And Cheryl Morris from the Office of the Official Solicitor may present a second case about the duty of a local authority to protect bth a child and its vulnerable young parent. Lucy Series from the University of Cardiff,who contributed to the FL-EUR project , may tell us about the role of families as substitute decision makers for incapacitated adults. The Mental Capacity Act of 2005 developed from the work of Lady Brenda Hale at the Law Commission shortly after the passage of the Children Act 1989 which had codified the protection of vulnerable children. But an additional influence on the MCA was the wish to clarify public authority to protect the professionals working with a vulnerable person, to define and regulate DOLs, and to establish the Court of Protection as a longstop to the family and other courts in these matters. Jane Mair from Glasgow University who wrote the FLEUR summary for Scotland can tell us how the Scots Adults with Incapacity Act 2000, aims at finding the lowest possible level of intervention.
US and Canada: From Canada Rachel Treloar reported little current interest in this topic. But in the US in California, June 2021, there has been a great deal of public interest in the case of Britney Spears, the singer, where she sought in June 2021 to be relieved of what she terms the “Abusive curatorship” of her father which had been ordered by the court in 2008 when she was suffering a period of mental ill health. She described him as having controlled her health and financial affairs for 14 years, forcing her to work, and refusing to allow her to remove an IUD when she wished to marry and have a child. This type of guardianship is intended for people who no longer make decision for themselves , but critics say the process can be exploited, and difficult to challenge. The curatorship has now been lifted!
Netherlands: Masha Antokolskaya and Wendy Schrama are preparing to research the coming reform of the Dutch system which will aim to cope better with an ageing population, and move away from automatic control of the vulnerable, seeking a better balance between empowerment via assisted decision making and protection for the VP, family and friends, and professionals. Bregje Dijksterhuis has experience of research on the role of the administrator in the Netherlands, the professional who takes care of the finances of someone with incapacity problems and is legally responsible for the person known as the beschermingsbewindvoerder.
Switzerland: Michelle Cottier can comment on the Swiss reforms of 2013 which encourage decision making by family members, ie ex lege representation by family members with a curator, followed by further reforms in 2017. In the population of 6 million there may be 90,000 cases, but with major local variation in incidence.
Germany: Thomas Meysen is interested in the case of parents with an intellectual disability where parents have to prove that they are capable when concerns are raised about a child, and how this shifts the focus onto what support services can be provided and whether they are sufficient to protect the child from harm. The key question here is whether parents and care institutions can make the decision about the interplay between the child’s rights, parental rights and the state’s duty to protect, or whether there is a role for family courts?
Bulgaria: Velina Todorova, who has served as a Minister of Justice in Sofia and worked with the UN for childrens rights , may tell us about two recent ECHR judgements against Bulgaria on deprivation of liberty in the elderly with incapacity. The focus for change is now on replacing substitute decision making with supported decision making, but the process of change has been slow, and the old system with guardianship and full incapacitation of persons with mental disabilities remains.
Poland: Jacek Kurczewski can speak of the boundary between acceptably eccentric and unacceptable public behaviour in old age.
Japan: Kayo Murayama can describe the need to protect others from damage caused by a vulnerable person or those responsible his care, and the liability of responsible relatives for the actions of their mentally infirm kin.
France: Benoit Bastard can highlight some of the financial issues arising.
Spain too has new legislation in progress . Teresa Piconto with Elena Lauroba may speak to the changes, and Encarna Roca Trias may bring us up to date concerning any new cases which reached her in her recently completed duty as Deputy President of the Constitutional Court in Madrid.
Argentina: Laura Lora and Julieta Marotta will contribute research on the developments in Argentina on the understanding of the child as a subject of procedural rights. The research will focus on the right of the child to be heard and to participate in family legal processes. It will look at the legal framework (primarily the Civil and Commercial Code of Argentina and National Law 26061). The research will further include an empirical section with an analysis on the views of family judges, mediators, public defender, and lawyers specialized in children’s rights. In-depth interviews will be undertaken with the stakeholders mentioned above.
The issues they wish to consider range from protection of children limited in capacity by their age, to the disabled and the elderly who need support and perhaps even control as their capacities are diminished with physical limitation and age. The boundaries and the balance between support and control vary considerably, from country to country.
But there is also the need to protect those who work with the elderly or infirm who may have to carry out procedures which either the vulnerable person or the family do not appreciate .
The question for us as sociologists of law is how much responsibility remains with the individual, with family and friends, or with professional carers, and how far lay or professional guardians appointed formally by the courts may provide support or control in welfare and financial matters. As human rights in this context are acquiring increasing recognition, and as concerns for providing support rather than coercion where possible in day to day decision making about finance or welfare for the elderly and inform are developing , there is a need for better understanding of how the justice system is working in practice. Sociologists of law may be able to add to our understanding of how these legal protections are acquired, funded and monitored, and what the impact may be on the vulnerable person and the wider society. Human rights issues surrounding deprivation of liberty and individual choice, whether related to either property or health and welfare, are becoming increasingly visible, especially where there is a possibility of intervention either by the family court or a specialist court of protection.
We hope to hear about the legal policy choices being made across the different jurisdictions, and discuss how they relate to concepts of the role of the individual, the family, and the state which underpin all our concerns about the involvement of families with the law from marriage and divorce to the welfare of children, the duty to support the frail, and to ensure sound financial management and finally the degree of testamentary freedom.
If we begin with an introduction to the jurisdictions represented, we could then work through a series of vignettes describing a child protection issue, a mental incapacity issue in adult hood, and finally an assisted and controlled decision making situation in old age , asking how each situation would be dealt with in each jurisdiction. The different paths taken and resources available will enable and encourage us to think more and more deeply about our central concern: the relationship between individual, family and state.
Our experience in Oñati
Following the success of our first virtual workshop in 2020, where the resulting book “What is a Family Justice System For” ed Maclean, Dijksterhuis and Treloar will be published by Hart Bloomsbury on August 25 2022, we were confident as a group about preparing a second virtual workshop. The IISL staff are experienced and skilful in advising organisers and participants on preparation for meeting in this way. The IT support for and during the meeting is reliable and well able to help with small problems. And many of us are now accustomed to meeting remotely.
But it is, of course, challenging to bring together participants from a range of national backgrounds, often working in their second third or fourth language, without the additional level of communication available face to face, and without the extra time to talk and discuss outside the meeting room. And it is particularly challenging to work on a new topic as in this meeting on Family Justice and Legal Incapacity, a subject first identified at the virtual meeting in 2020. But helped by the experience of working together over some years this group of sociology of family law scholars clearly achieved the objective of taking the first steps in developing this subject. We hope to be able to report progress with research and prepare for publication at an in person Workshop next year.
Mavis Maclean, University of Oxford. Convenor