The Lord Chancellor, as he was fondly known and had been for about 1400 years, until Tony Blair sought to distance himself from the wallpapering disaster known as Derry Irvine, devising a system of Kremlin-lite titles until finally settling on Secretary of State for Justice, originated as the King’s conscience. The man of letters and religious training who whispered in the King’s ear – ‘Not fair, My Liege, this imbecile is plainly an imbecile, and it’s not fair to take his head off for acting like an imbecile, he can’t help it’.
It was an honourable role, forcing the law to be fair – or equitable – as well as rigorous. That ancient role became known as parenspatriae from the 16th century onwards, and was the basis for the present Mental Health laws – the idea that the State should act on behalf of those unable to act for themselves, be they children, incapacitated adults, or the mentally ill. Here endeth a monstrously over-simplified lesson in jurisprudence….
It was important that those of you who are not lawyers understand why this law developed – to assist those who are unable or incapable of assisting themselves. You might have thought that the recent welter of legislation would have covered every possible place in which that ancient role might need to be exercised – the Children’s Act, the Mental Capacity Act, the Mental Health Act; the High Court is fully armed with weapons to use against those who take advantage of the vulnerable.
I am indebted to a Raccoonteur who e-mailed me a case which I had missed recently. She was right, I had taken my eye off the ball – it seems the High Court discovered back in 1990 that it still holds the ancient weapon of parenspatriae, and is quite prepared to use it – on behalf of perfectly sane, fully adult individuals in total possession of all their faculties. Nanny knows best, no matter what you may think, no matter how capable you may be of thinking for yourself.
Lord Reid once said:
“English law goes to great lengths to protect a person of full age and capacity from interference with his personal liberty. We have too often seen freedom disappear in other countries not only by coups d’état but by gradual erosion: and often it is the first step that counts. So it would be unwise to make even minor concessions.”
Is that still true? We shall see. The case that was sent to me concerned an elderly couple, I shall call them Derby and Joan, aged 85 and 90 respectively. They had a 55 year old son, I shall call David, still living at home with them. The issue at point was the relationship between all of them.
Relationships are difficult things for outsiders to grasp. Who hasn’t driven home from a party engaging in a conversation along the lines of ‘Did you hear how she spoke to him, I wouldn’t put up with you speaking to me like that’. None of us can fathom the reasoning or the succour others gain from relationships that we would not enjoy. Nor the compromises that we all make ‘for the sake of peace’. That applies as much between parent and child as it does between partners. I loath ‘roast dinners’, I also know that Mr G would set up a fearful caterwauling, lengthen his face by several yards, and be an unendurable house partner if Sunday did not contain a roast dinner. Is that undue influence? Can I honestly be said to be applying my own free will to my decision to manfully munch my way through Yorkshire pudding and Roast Pork of a Sunday? I think so – it is the trade off I make in order to share my life with an otherwise exemplary human being. Another person – like a social worker – might claim that I was being ‘bullied’ into eating food that I disliked. I would say that it is my choice to be ‘bullied’ in that respect. (Note to self, go and peel potatoes as soon as you’ve finished writing this).
Undoubtedly vulnerable adults need to be protected from such bullying when they are incapable of standing up for themselves, that is why we have the various branches of ‘best interests’ legislation. But what of those who are deemed to have ‘full capacity’ to use the legal jargon? Who are not deemed to suffer from any mental or physical impairment. Surely the State has no right to intervene? It seems it does.
The High Court has reaffirmed that the doctrine of parenspatriae was never repealed, and can still be used – for those that the High Court deems vulnerable, but who do not fulfil any of the criteria for the various pieces of legislation that allegedly ‘protect’ the vulnerable.
‘Joan’ was physically disabled. Her son David, who had cared for both parents for many years, was said to have ‘bullied’ his 90 year old Mother into accepting residential care. Social Services are normally deemed to have acted in her ‘best interests’ when forcing a 90 year old into residential care. David became a ‘bully’.
At the time that these proceedings were commenced, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) was incapable, by reason of any impairment of or disturbance in the functioning of the mind or brain, of managing their own affairs, and, in particular, both Mr and Mrs L appeared capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves.
The Social worker didn’t agree.
The local authority is concerned about DL’s alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority has documented incidents going back to 2005 which, it says, chronicle DL’s behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, and the terms upon which they may visit them, including health and social care professionals providing care and support for Mrs L. There have also been consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL’s name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.
Note the ‘it is said’ – by whom we know not. Reported we must assume by the Local Authority. A Local Authority who, by the sound of it, have been told to ‘p**s off’ more than once by the son. We don’t even know, nor does the High Court, the son’s version of this, for by the Social Worker’s account, he was unable to ‘fix a suitable appointment’ to interview the son. The High Court had to rely on his one sided account.
Mr. Fowler invited DL to be interviewed during the visit which DL acceded to, however the appointment could not be re-arranged to suit DL’s availability and the assessment proceeded without DL(para 2.1)).
So, we know that neither Derby nor Joan lacked capacity to make their own decisions, and that neither of them expressed any wish for the Local Authority to intervene on their behalf.
The local authority acknowledges that, on the information currently available to it, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other by reason of any impairment of or disturbance in the functioning of the mind or brain. The local authority recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL’s behaviour, it remains unclear as to whether he, Mr L, would wish to take steps in opposition to his wife’s wishes.
Case thrown out, right? Wrong!
David was alleged to have acted in an aggressive and confrontational manner towards various Social Services employees. It was stated that he had ‘prevented one or both of his parents from going into particular rooms’. Did that amount to ‘Don’t go in the kitchen Mum, I’ve just washed the floor”? It was stated that he had refused to let them touch the washing machine. Did that amount to ‘Leave it alone Dad, it hasn’t finished its spin cycle’. David was alleged to have ‘pressurised’ (unsuccessfully!) his Father into signing the house over to him. Was that a ‘Dad, will you do something about the house before Social Services take it off all of us’? Mindful of the dour language used to describe Steven Neary’s habitual ‘tap on the shoulder to attract attention’ which turned into an ‘assault on staff’ to ask when he might go home, are we right to be concerned by this one sided information being ruled upon? We simply don’t know, nor does the High Court.
It is a long and detailed discussion, a masterful summation, but it seems more concerned with ruling on whether Parliament had removed the right of the High Court to intervene in such cases than in examining whether anybody has the right to overrule the wishes of Derby and Joan and see their son and their relationship with him dragged through the High Court.
The Local Authority have now been given permission to proceed with a raft of instructions concerning how the son should behave towards his parents and various care staff. All rather academic now, owing to the long wait for this case to come up for hearing, Derby is now in a care home and has subsequently lost mental capacity, for how long Joan will be maintained in the family home is unclear.
It will not go unnoticed by the sharp eyed that in ‘winning’ this case the Local Authority have established that they have the right, not other occupiers of the house, to decide what is acceptable within a relationship. That includes, says the cynic in me, the right to decide whether there should be any conversation around the ownership of the house being transferred to anyone but them….
Item 3 of the restraining order:
(iii) seeking to persuade or coerce GRL into transferring ownership of the current family home;
Elderly couple being protected from abuse, or Local Authority being given the right to dictate private relationships? You tell me.