Fancy having a judge in your living room?
Courts are treating competent adults as vulnerable beings who need state protection. That’s bad for liberty.
Thanks to the English High Court, state policing of personal relationships in Britain is on the rise.
For centuries, the High Court has claimed an ‘inherent jurisdiction’ to take care of the persons and property of those who could not look after themselves. This power covers minors and wards of court, as well as adults who lack mental capacity. It originates in an ancient Crown Prerogative, going back to feudal times (1). But in a little-noticed legal development, some judges of the Family Division have started to claim an ‘inherent jurisdiction’ over the lives of adults in full possession of their faculties.
This is a disturbing trend. These rulings are given at private hearings. Parliament, the public, and indeed the Ministry of Justice, are none the wiser. The problem, at base, is a constitutional one. Our judges are unelected, and are not supposed to make laws. That is parliament’s function.
Parliament has said that people become adults at age 18 (2). Most people think that the point of reaching adulthood is that you get to decide where you live, and who your friends are. If you make unwise decisions, that is unfortunate, but it is not a basis for the authorities to intervene. However, last March, in a case called ‘DL’, the Court of Appeal said that the High Court is entitled to disregard adult decision-making (3).
What was the case about? DL is a man in his fifties, who lived with his very elderly parents. His mother, who was disabled, received some services from their local authority. There was discord between DL and the authority. It alleged that he assaulted his parents. It claimed that he was trying to persuade them to transfer the house to him; was restricting their use of household appliances, such as the washing machine, and was ordering carers about.
DL’s parents did not agree, and flatly refused to take any action against their son. Everyone accepted that the parents had legal capacity. On the face of it, the life which they and their son had chosen to lead together was no one else’s business.
But the local authority decided it was time for a judge to police the scene. It got the president of the Family Division to issue a raft of injunctions against DL, at a private hearing to which DL was not invited. This included such seemingly petty matters as forbidding DL to ‘persuade’ his mother to move to a care home.
A social-care expert was then sent to interview the parents. He claimed (without meeting DL) that DL was unduly influencing his parents, and that their ability to make balanced and considered decisions was compromised. However, he accepted that DL’s mother was able to give instructions which reflected her own wishes, though they were subject to DL’s influence. The father resisted pressure from DL. Both parents understood the advice which was given to them.
So far, so what? Many families have a dominant or influential figure, to whom others prefer to defer. That is their choice. There is nothing inherently wrong with ‘influence’. And anyway, why should family members have to make ‘balanced and considered’ decisions in their personal dealings with each other?
DL challenged the court’s jurisdiction, using the simple argument that, because they all had capacity to decide things for themselves, the court had no business interfering. He lost resoundingly. Both the High Court and the Court of Appeal claimed that the judges were being ‘facilitative’, not dictatorial, and were just helping the parents regain their autonomy of decision-making.
But there is nothing facilitative about a court injunction which tells people what they can and cannot say to each other in private, on pain of imprisonment. Injunctions are coercive. There is nothing facilitative about requiring elderly people to present themselves and their private lives for assessment by an outside expert. This is about as intrusive as it gets. Underlying this decision, and others like it, is an intolerance of others’ lifestyles, and a determination to corral them into making what others see as the ‘right’ choices.
In an earlier case in 2004, which the judges cited, a local authority claimed that the behaviour of a young woman’s father towards her had caused a breakdown in her mental health. The judge there reasoned that, because courts have powers to intervene in the lives of children to protect them, therefore the courts must have similar powers over the lives of adults (4), This is illogical. If the father had really caused harm to his adult daughter, she could sue him for personal injury or harassment. If she chose not to, that was her choice.
In another case in 2005, a local authority feared that a deaf young Asian woman called SA, who had just turned 18, might be taken out of the country and married without proper consent (5). The judge accepted that SA had capacity to marry. But in a convoluted and confusing judgment, he said that even though she had capacity, the court could make orders restrictive of her liberty, for example by limiting access to her passport. He said: ‘The inherent jurisdiction is no longer correctly to be understood as confined to cases where a vulnerable adult is disabled by mental incapacity from making his own decision.’
This is another leap of logic. The threshold for official intervention is no longer a person’s lack of mental capacity: the basis for intervention now is their (perceived) vulnerability.
Some paragraphs later, the judge in the case of SA announced: ‘It is likely to be easier to persuade the court that there is a case calling for investigation where the adult is apparently vulnerable than where the adult is not on the face of it vulnerable.’ So an adult who is not vulnerable is, theoretically at least, also subject to judicial enquiry. Finally, he said: ‘The court has a positive duty to assist SA to enter into what will for her be the “right” marriage.’ This does sound as though SA would only be allowed to marry someone of whom officialdom approved.
In a third case in 2010, an authority wanted to force a married woman with learning difficulties to use contraception, against her and her husband’s express wishes, if need be by involving the police! (6) The authority claimed that the husband was the dominant partner in their relationship. This may well have been true, but so what? The woman’s capacity to marry was not disputed.
This judge, to do him credit, baulked at the local authority’s totalitarian proposal. He did, however, decide that the wife lacked mental capacity to decide matters of contraception. This conclusion could be seen as a fudge (not least because it suggests she lacked capacity to have sex in the first place).
Judges of the Family Division of the High Court have been seduced by what Frank Furedi has called ‘the fatalistic sociology of the precautionary principle’. This views all human beings as innately powerless, vulnerable and at risk (7). And if to be at risk is a condition of life, then everyone becomes a legitimate target of judicial intervention and protection. This refusal by the courts to acknowledge adults as self-determining agents has ominous implications for liberty and the law.
Barbara Hewson is a barrister at Hardwicke in London.
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