Wednesday, January 30, 2013

Court of Protection nullifies marriage without husband’s knowledge


Imagine a superior court, presided over by a solitary judge, empowered by the state to determine the ‘personal welfare issues’ of those who are deemed to be incapable of doing so on their own behalf. We’re talking about jurisdiction over the financial or property affairs of those whom the state determines lack the mental capacity to make informed decisions for themselves. This court also has enduring powers of attorney, such that it may order, in perpetuity, the affairs of all who are appointed to its ‘protection’, such as appointing trustees over an estate; writing a last will and testament on their behalf; determining where they live, how they are cared for, and even who may visit them.

And now imagine that such a judge sitting in such a court determines to nullify the marriage union of one of its ‘protected’ clients, despite both parties having freely consented to that union to the satisfaction of a registrar, legal witnesses, and an experienced professional with 16 years’ experience of working with the mentally incapacitated.

This is not the former Soviet Union, Communist China, North Korea or Islamist Iran. It is the Court of Protection in England, today, issuing ‘family court’ judgments which affect husbands and wives, mothers, fathers and children, as though marriage were not so much an honourable estate for mutual companionship, love and the secure rearing of the next generation, but a simple contract for the ordering of material possessions.

Now, certainly, property rights are why states and lawyers began to involve themselves in the business of marriage at all: it is for the common good of society that matters of ownership and legitimate inheritance are properly ordered. But for Christians – indeed, for people of all faiths and for many of none – there is something of rite and ritual about the marriage ceremony, whether secular, sacred or sacramental. The vows of personal promise, of commitment, and the swearing of oaths – before God and/or the assembled community – are sincerely made and deeply felt. It is what makes marriage marriage: it is part of why ‘civil partnership’, which has no statutory inclusion of oaths or promises, fails to satisfy so many gays and lesbians. Marriage is more than a state contract, they insist, and so the mystical element of holy matrimony must be extended equally to patrimony, whether holy or not: it is more, much more than two signatures on a solicitor’s piece of paper.

A case has been brought to His Grace’s attention which he finds somewhat disturbing. In fact, it is outrageous. The transcript of the judgment relating to the brain-damaged husband (SK) and his wife (JK) is long, but Anna Raccoon has the summary details (and not dissimilar concerns). The Court of Protection does not permit the individuals concerned to be identified, so Ms Raccoon calls them Sam and Jane. For convenience, His Grace will do the same.

Jane did not seek the annulment: the case was brought by a ‘local authority’ (– you know, the sort who not infrequently traumatise parents by bringing secret cases relating to child protection or adoption, which can never be reported in the media –) on behalf of Sam’s family, who seem somewhat irked that Jane married Sam in the first place.

Sam tragically suffered two separate head injuries which left him mentally impaired, but by no means incapable of comprehending or expressing himself. Of course, there is some dispute about what he may or may not understand, but (for legal purposes) he is deemed sufficiently compos mentis to consent to medical procedures including surgery. Sam can apparently sign his name, talk and engage in relationship: he is by no means a vegetable.

Jane has known Sam for 35 years – they were teenage sweethearts. Both married other partners and both subsequently divorced. When Jane heard of Sam’s second accident in 2008, she went immediately to the hospital. The court papers inform us that she has visited him there on a ‘more or less daily’ basis over four long years to date. As Ms Raccoon observes: ‘I don’t think anyone can doubt her commitment to Sam’s well being.’ His Grace would go further, not doubting her love and concern, for four years of daily visits is a profound sacrifice.

But Jane is not family: it is Sam’s next of kin who took charge of his care, and they determined that a state neuro-disability unit was preferable to living at home. This is Sam’s brother and mother – who do not visit Sam daily, but might be more inclined to order his care such that it’s not so much of a burden to them. Discussions have taken place and decisions been taken to which Sam was not party because, Ms Raccoon tells us, ‘once someone is deemed not to have capacity to conduct their legal affairs, as “a patient” they cease to be consulted as a matter of course’.

There is some dispute as to what transpired next: As far as Jane is concerned, their four-year relationship of daily encounters blossomed into love, and they agreed to get married and live together happily ever after, she caring for him and meeting all his needs in a domestic setting – care in the home. Since Sam’s family weren’t overly keen on Jane, the decision was taken to do it all in secret. But Jane was careful to arrange an independent advocate for Sam, whom we shall call Robin (an advocate for mentally incapacitated individuals of 16 years’ experience; a former Assistant Director of a Social Services Department, working through the Representational Advocacy Unit of the local Citizens Advice Bureau) We are told:
Robin had several conversations with Sam and Jane. During those conversations he became aware that they wished to marry – and he was of the opinion that Sam had the necessary capacity to contract a marriage. The level of capacity to contract a marriage is considerably lower than that required to handle ones financial affairs.

Robin also became aware that Sam and Jane didn’t want to involve his family – the reasons he was given as to why are not recorded, but as Sam’s advocate, his job was to reflect what Sam wanted.
So, Jane arranged the marriage ceremony with the town’s Principal Registrar, disclosing fully Sam’s brain injury, and that he had been assessed as lacking the capacity to handle his financial affairs or to decide where he lived. She left it to the Registrar to make a judgment about Sam’s capacity to marry. When later questioned by a neuro-surgeon, the judgment was that ‘Sam can’t retain even simple information’, yet when he gives perfectly reasonable answers to a question (such as the meaning of marriage), the medical assessment is that this is ‘retained information’. English case law on the capacity to marry is a not straightforward, but who (really) may be judged as knowing fully what the commitment entails before all the rows, in-laws, money problems and children descend upon the blissful union?

Most importantly – and here’s a principal outrage – Sam was questioned and assessed on his capacity to enter into a marriage union without full knowledge of the reason for the questions, or any awareness at all of the importance to be attached to his responses. As far as he’s concerned, he’s having a chat about the meaning and significance of marriage. In reality, the Local Authority is gathering evidence to attempt to nullify the union.

Just a week before the wedding, Sam required surgery for a bladder operation. All the medical professionals involved were content that Sam had the necessary capacity to consent to this. There was no appeal to the Court of Protection to determine Sam’s ‘personal welfare issues’ where invasive surgery was concerned.

Is the consent to marry of a higher order than life and death matters of surgery?

Well, clearly the Court of Protection thinks so, for the Judge has swept aside the evidence of Jane, Robin and the Registrar, not to mention the professional judgment of a surgeon and an anaesthetist. Sam’s mother and brother were naturally upset to hear that he had eloped (what family wouldn’t be?), and were even more angered that Jane took Sam out of the clinical facility to live with her. Ms Raccoon recounts:
It was by any standard, a brave decision, and not one taken in total ignorance. She was, prior to all this, a specialised support assistant for those with learning disabilities. I am well aware of the enormous stress placed on anyone who cares for someone with a brain injury in a home situation. It is an unenviable job, and one I would suggest that is only possible with a great deal of care and love for the person concerned. There are few rewards.
Robin, the advocate, visited Sam at Jane’s house and a statement of Sam’s desires was taken. Sam made it known that he wanted to live with his wife, and that he wanted his brother out of his affairs. Jane’ lack of cooperation with care professionals led the Local Authority to commence proceedings in the Court of Protection and an interim order was made that Sam be returned to the facility. Jane duly complied with that order.
It is not hard to imagine that by this time the family must have imagined that Jane was the Devil’s spawn, she had not only married their darling son, she had had the nerve to imagine that she could love and care for him too.
So the Local Authority, acting on behalf of Sam’s brother, began proceedings to have his marriage to Jane annulled. As Ms Raccoon incisively reminds us, there are a number of points to consider before making your mind up whether the marriage itself should be annulled:
1) Sam is under the auspices of the Court of Protection; that means that any financial benefits that might accrue to him as a result of his accidents will be held by the Court of Protection who will employ a specialist solicitor to oversee each and every bill paid on his behalf. The money would NOT be handed to his wife, even if they had been married for 50 years.

2) One of the first duties of such a specialist solicitor will be to draw up what is called a Statutory Will for Sam. Such a Will would reflect the fact that Sam has a son from his second marriage and make provision for him.

3) True, if such a statutory Will was made, and if Jane was still married to Sam, then provision would have to be made for her future, as well as bequests to his Mother and his brother – but we are talking about the situation if and when Sam dies. The decision that the marriage should be annulled has allegedly been taken ‘in his best interests’, which is only applicable whilst he is alive.

4) It is an unusual marriage; more ‘in sickness and in ill-health’ than anything more optimistic. Is that not a time when we need the comfort and security of a loving partner more than ever? What exactly is the effect of a marriage, now that we have discounted the financial aspect, that it is in Sam’s ‘best interests’ NOT to have?

5) In view of the fact that Sam has been in care more or less continuously since the marriage occurred, I am assuming that the marriage has not been consummated. It should be none of our business, but someone is bound to bring up non-consummation as a factor. As far as I can discern, non-consummation of a marriage has never been grounds for annulment except where that non-consummation has been wilful. Scarcely applicable in this case.

6) Much has been made of Sam’s answers to various questions as to who visited him, how often, and what provisions he thought it reasonable to make for his son. Since it would appear that Sam is unaware that these questions are being posed with a view to annulling his marriage, then I am reading his answers in line with his stated view that his family should not be aware of the marriage.

7) Whilst Sam is in hospital, Jane holds an automatic ‘right’ to visit him as his ‘next of kin’ – that would not be so should the marriage be annulled. Common law partners, girlfriends, and friends in general do not have automatic access to hospital patients. The ‘family’ would revert to legal ‘next of kin’ – given that they are now all at loggerheads, how likely is it that they would allow Jane to continue to visit Sam daily – or at all?
The judgment to annul this marriage – to declare, in effect, that it never existed – is the very negation of love and a denial of the principal purpose of marriage – that man might not be alone. Mr Justice Bodey’s concerns himself with issues of bureacracy and possessions, and Jane’s unconditional, sacrificial commitment is rendered void. Sam, by order of this court, is now destined to live out the rest of his life alone. It is an outrage that he as not informed of the motives of his inquisitors: it is a far greater offence that he is not now permitted even to know that his marriage to Jane no longer exists. He will live not so much in a mystical union, but a fantasy isolation, because the Court of Protection determines that it must be so.

If questions had arisen in a church context about a person’s mental capacity to understand the meaning of marriage, clergy are not required (or qualified) to make a psychiatric assessment: it would be for a registrar to determine. Sam had satisfied the Registrar. He had satisfied his advocate. For the Church, this marriage would be considered valid, if no longer legal.

According to Canon Law, marriage rests on the intention of the parties to live together in a married state. Certainly, if either party were non compos mentis, that could be grounds for nullity. But what is the measure of this mental capacity? Is being 16 and so ‘too young’ and ‘not understanding the full implications of the undertakings’ valid grounds for nullity? What if one has no understanding of (say) ‘the future’? Could one really validly promise to love someone ‘till death us do part? How does one assess a person’s ‘frame of mind’? This is dangerous territory, for which of us could say we entirely understood what we were letting ourselves in for as we stood at the altar and made our vows before God and the assembled throng of witnesses?

If individuals have the power to form contracts or give assent to invasive surgery without parental consent, they ought to be able to marry. The nature of Sam’s mental incapacity is not such that he is forcibly sectioned.

Nullity – for Anglicans – is a considerably problematic area, not least because of the history of our church. For Roman Catholics it is usually based on ‘lack of due discretion’, and judged by a tribunal of canon lawyers. Their judgment then goes to a superior tribunal, for man may not easily put assunder that which God hath joined together. From the Book of Common Prayer of 1662:
The Bible teaches us that marriage is a gift of God in creation and a means of his grace, a holy mystery in which man and woman become one flesh. It is God's purpose that as husband and wife give themselves to each other in love throughout their lives, they shall be united in that love as Christ is united with his Church.

Marriage is given that husband and wife may comfort and help each other, living faithfully together in need and in plenty, in sorrow and in joy. It is given that with delight and tenderness they may know each other in love and through the joy of their bodily union may strengthen the union of their hearts and lives. It is given as the foundation of family life in which children may be born and nurtured in accordance with God's will, to his praise and glory.

In marriage husband and wife belong to one another and they begin a new life together in the community. It is a way of life that all should honour and it must not be undertaken carelessly, lightly or selfishly but reverently, responsibly and after serious thought.
This is the order of creation – God’s business. But increasingly in this country we are seeing the State via local authorities exercise their discretionary powers to act on behalf of ‘clients’, and justice cannot be seen to be done because the courts are secret and nothing may be reported in the media. There have been many apparently capricious and oppressive judgments for some families, reducing one party to a nervous wreck and another to penury.

As for Sam and Jane, the secular state may not recognise their marriage, but it is an exclusive union of love between a man and a woman for mutual companionship ‘for better, for worse, for richer for poorer, in sickness and in health’. Where a vicar is content with the mental capacity of a couple and duly solemnises their marriage, it remains a marriage in the eyes of God and the Church even if some secular doctor later declares himself not content. Indeed, there are some who might validly question Jane’s mental state, having voluntarily entered into a union which seems to guarantee her an awful lot more of ‘worse’, ‘poorer’ and ‘sickness’ than ‘better’, ‘richer’ and ‘health’. What sane person would desire such a state?

Moreover, Canon Law specifically guards against covert annulment: both parties have the right to be informed and the right of appeal against the judgment. But not so under the Court of Protection. The right to be informed is denied, and the enormous costs of appeal are prohibitive. So here is an example of the Church ensuring and dispensing a higher degree of natural justice than the State, while the State determines that marriage consists of nothing more than banal bureaucracy. Since the Court of Protection operates under the aegis of the Crown, and since Her Majesty is Supreme Governor of the Church of England, perhaps we should assist Jane to take this matter higher?

33 Comments:

Blogger Mark In Mayenne said...

This one must go to the very top. Or as far as necessary, if lower.

30 January 2013 at 11:06  
Blogger The Way of Dodo said...

You've made the complex appear rather simple without knowing the full facts.

Surely this gentleman has a Guardian ad litem who is representing his interests in Court? This person would present his views, take instructions from him, arrange legal representation and marshal specialist medical advice. Why is this not mentioned?

It does sound as if this marriage was arranged to obstruct and frustrate the decisions of the next of kin about his future welfare and, without evidence, it is nasty to suggest they want him in institutional care for selfish reasons.

Under Roman Catholic Canon Law this would only be considered a valid marriage if entered into with an intention to have children or, at least, not to use means to prevent this.

30 January 2013 at 11:35  
Blogger Brian West said...

Jane does seem to have put herself and Sam in a potentially weak position by marrying in secret.

Brian

30 January 2013 at 11:48  
Blogger Kate Danaher said...

Interesting, given that people with Down Syndrome have been allowed to marry:
http://www.dailymail.co.uk/femail/article-392260/Downs-couple-A-marriage-lift-heart.html

30 January 2013 at 12:05  
Blogger Brother Ivo said...

One can only read this story with disquiet and profound sadness.

30 January 2013 at 12:17  
Blogger Jonathan said...

The court's published judgement gives a rather different view of the case. The court found that Sam is very suggestible, and cannot remember or recall information for any length of time, and is unable to recall whether or not he is married, engaged, single, or divorced, claiming to be all of them depending on when asked. As for his advocate, the court found that he had become inappropriately influenced by Jane's view of the situation.

A complex and very strange case, but a lot more nuanced and less sinister than at first sight.

30 January 2013 at 15:24  
Blogger Fly said...

You write very interesting thoughts regarding medical law. If you want to publish more blog posts and articles, you can do it on Attorney Online. For example, in a rubric of medical law articles. There is also a free attorney directory and every attorney can submit contacts there.

30 January 2013 at 16:03  
Blogger The Way of Dodo said...

Brother Ivo said...
One can only read this story with disquiet and profound sadness

Yep, read the full judgement and its pretty clear what the Judge is suggesting was going on. It seems to me the Court did its job in annulling this *marriage*.

Is our host suggesting there should be no Court of Protection or that the proceedings should be public?

30 January 2013 at 18:08  
Blogger Office of Inspector General said...


perhaps we should assist Jane to take this matter higher?

hmmm. When a woman rushes to the side of a mental invalid with love, care and affection, you can be sure there is money around him. A LOT of money…

That’s why the Court of Protection is there. There must have been compelling reason for the judgment, but of course, you have only published one side of the story.

Anyway Archbishop, are you mounting an appeal. One hopes you have deep pockets, as you will most likely be on your own…





30 January 2013 at 18:11  
Blogger carl jacobs said...

Dodo

Yep, read the full judgement and its pretty clear what the Judge is suggesting was going on. It seems to me the Court did its job in annulling this *marriage*.

Please elaborate.

carl

30 January 2013 at 18:51  
Blogger bluedog said...

Chilling, Your Grace. The state asserts its primacy over the rights of the individual and the ability of a man and a woman to love and comfort one another is denied.

Mr Inspector, if you read His Grace's comments carefully you will see that Sam already has a will that provides for his son. It would seem that Sam is no longer deemed to be of testamentary capacity and therefore cannot create a new will. Thus it is unlikely that Jane will ever benefit from Sam's estate. Jane's future entitlement would have depended very much on the length of their marriage. It appears that the brother understood this and made representations that lead to the annullment. The terms of the brother's application to the court would potentially disclose the implicit reasons for annullment within the explicit reasons.

The case certainly doesn't read as one where a gold-digging carer, years younger than Sam, has suddenly realised that he is the most attractive man she has ever known. There is a genuine romance; a teenage love-affair has re-ignited and is very much alive.

Let's hope that love conquers all.

30 January 2013 at 20:08  
Blogger The Way of Dodo said...

Carl
Just read the judgement. Amongst other things it is apparent SK was 'primed' to answer questions about marriage.

bluedog
Have you actually read the judgement? You should.

The motives of JK are not especially relevant. What is pertinent is whether SK understood marriage - he didn't - and whether his best interests were being served by the deceitful behaviours of JK - they weren't.

The other issue Cranmer raises is if the State should intervene in such situations. Of course they should. Vulnerable adults and children are entitled to protection. Comparing the confidential proceedings of the Court of Protection and Family Courts, where one has legal representation and the medical opinions of independent professionals is central, to the "former Soviet Union, Communist China, North Korea or Islamist Iran" is sheer nonsense.

30 January 2013 at 20:26  
Blogger Office of Inspector General said...


Bluedog, you old romantic. Now see what you’ve done. You have the Inspector blushing as if he was involved with the marvellous feeling of first love himself...

30 January 2013 at 20:45  
Blogger Last Laugh said...

This comment has been removed by the author.

30 January 2013 at 22:37  
Blogger bluedog said...

Mr Dodo @ 20.26, isn't the following of relevance?

'In so doing the court has to guard against an over-paternalistic approach, as Munby J (as he then was) said at paragraph 144 of
Sheffield City Council -v- E & Another [2005] 2 WLR 953 (“Sheffield ”): “...there are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test on capacity to marry too high, lest it operate as an unfair,unnecessary and, indeed, discriminatory bar against the mentally disabled.”

You say, 'What is pertinent is whether SK understood marriage - he didn't - and whether his best interests were being served by the deceitful behaviours of JK - they weren't.'

Your remark typifies the paternalism against which Munby J warned.

Bear in mind that SK had proposed to JK in 2007 at which time they had resumed the sexual relationship of their teenage years.

30 January 2013 at 23:11  
Blogger The Way of Dodo said...

bluedog

For goodness sake!

The poor chap didn't know if he was married or not! His *wife* clearly primed* him and his *advocate* became partial and unprofessional. And once she was *next of kin* look what she did.

If the Local Authority had not succeeded with this application they would have been duty bound to initiate Guardianship proceedings to protect SK's interests as his *wife* was acting against these.

Is it *paternalism* to seek to protect the vulnerable when those *responsible* for them are acting against their interests? There was no marriage because SK was incapable of understanding or retaining the meaning of this in relation to JK. Whatever her motives, JK manipulated SK and the situation.

30 January 2013 at 23:31  
Blogger carl jacobs said...

Dodo

Just read the judgement.

Yes, except Io was at work. I didn't have time to read the judgment and I had been wondering what JKs self-interested motive might be. Having now read the judgment, I can't see that the judge found any self-interested motive on her part. He based his decision solely on his determination that SK couldn't give consent. Which seemed the right answer to me. The most important argument I read was this:

[I]t is not difficult to see how SK’s deceptive ability to converse convincingly would have satisfied the clinicians and nurses that he was able to give informed consents

carl

31 January 2013 at 01:19  
Blogger Manfarang said...

Under s12 (c) Matrimonial Causes Act 1973 a marriage may be voidable due to lack of consent. This may be the result of duress, mistake as to identity, unsoundness of mind, or otherwise.

31 January 2013 at 04:48  
Blogger bluedog said...

Mr Dodo @ 23.31, with respect you may now add a line to your Linkedin profile to the effect, ' experienced in callous materialism'.

Let's look at the potential motives of the players, given that SK may not be long for this world. Mother RK is probably over 80 years old, well off, so not expecting a legacy from her son but too old to care for him. Brother CK, marital status unknown, shows no inclination to become his brother's keeper, may expect a legacy from SK. Son of SK, too young to care for SK as still in mid-teens, probably living with the second Mrs SK, entitled to a significant legacy. A court would grant such a legacy if otherwise denied. JK, the third ex-wife, certainly prepared to care for SK, may have anticipated a legacy as the wife, clearly prepared to care for SK 24/7.

Now that the marriage has been annulled, who cares for SK?
If JK continues, her love for SK, already recognised in the judgement, is undoubted. She passes the non-gold digger test. But what recompense does she receive?

If the state regards marriage as nothing more than a vector for the transmission of assets, which seems to be the case, it is callously materialistic indeed. An obvious and reasonable solution is for the marriage to be re-instated so that JK can care for her teenage sweetheart in his rapidly declining years as his wife. On the death of SK, JK might then receive a modest legacy in recognition of her sacrifice.

Clearly this line of thinking is alien to SK's immediate family and also to the near-bankrupt British state. The munificent British taxpayer seems to be about to provide care for SK at the most expensive time of his life.

Not only heartless but incredibly stupid.

31 January 2013 at 09:53  
Blogger The Way of Dodo said...

bluedog

The issue is whether SK was competent to enter into a marriage contract - he wasn't.

Now you should add a line to your Linkedin profile - "incredibly naïve".

If SK was competent and JK's motives honourable, why did she act so deceitfully? Love?!

31 January 2013 at 11:07  
Blogger bluedog said...

'why did she act so deceitfully? Love?! '

Why not?

31 January 2013 at 11:12  
Blogger The Way of Dodo said...

You think?

31 January 2013 at 20:40  
Blogger bluedog said...

Yes. How and by whom SK is to be given the care he needs? What if JK now departs, in sorrow and anger?

His mother and brother make no offer of care, neither do his first or second ex-wives or his teenage son. Will the state put him in a home? Will this be better for his well-being than remaining in his own home with the care provided by JK? The answer is almost certainly, no.

A point not explored but potentially relevant is the joining of the mother in the case initiated by the brother. Most parents are loathe to intervene in the disputes of adult siblings. We can estimate the age of the mother as at least eighty. Did she understand the implications of the case? Does she really want the state to care for her invalid son rather than a woman he has known for forty years? Most parents are content to see that their children are happy, do not try to lead their children's lives for them and are accepting of compromises.

Whilst the son may have an antipathy to JK, which may date back to an incident in SK's teenage relationship with JK, it seems highly unlikely that the mother would share this animus.

It seems to this communicant that if the marriage was a contrivance, so too was the annullment.

31 January 2013 at 22:03  
Blogger The Way of Dodo said...

bluedog

Mere speculation on your part into an attempt to turn this sorry tale into a modern day Romeo and Juliet. We just don't have sufficient facts.

SK has an Official Solicitor, appointed by the Court, to oversee his interests and there are clearly a range of other professionals involved who have his best interests at heart.

Reading the judgement, I was stuck by the evidence suggesting SK had been prepared and primed to answer questions. An example is his response to those about money - in effect he rattled off 'what's her's is her's, what's mine is mine'. In actual fact this would not be so. In my experience, to care for a person with this range of needs would require 24 hour care by one or more people and quite possibly a puropose built house. Relatives can claim such expenses from any compensation fund, including compensation for giving up one's career in favour of remaining at home and payments for caring services rendered.

I was uncomfortable reading about the behaviours of JK in the run up to this *marriage*. And, if SK is unaware he is married, as held by the judge, why would one need to inform him he isn't?!

1 February 2013 at 12:44  
Blogger bluedog said...

Mr Dodo @12.44 says, 'Mere speculation on your part into an attempt to turn this sorry tale into a modern day Romeo and Juliet.'

Trivialising my earlier post @ 22.03 is scarely a counter argument.

If SK had an Official Solicitor (age, experience, external, internal?) one can only wonder who briefed the OS. Probably neither JK or SK were included.

'In actual fact this would not be so. In my experience, to care for a person with this range of needs would require 24 hour care by one or more people and quite possibly a puropose built house. Relatives can claim such expenses from any compensation fund, including compensation for giving up one's career in favour of remaining at home and payments for caring services rendered.'

A purpose built house may be your civil service solution, but surely a great deal can be achieved more cheaply by modifications to an existing property. We did it for my late mother who died young and at home, but required 24 care for the last five years of her life. So yes, I have experience too.

There is also no doubt in my mind that SK would receive a better quality of care from JK than from some impersonal and probably under-staffed NHS facility. If JK received a publicly funded grant for modifications to her home enabling SK to be properly cared for, so what?

Anything would be better than the NHS solution.

The villain of the piece is CK who has manipulated his brother's circumstances for unspecified and possibly selfish reasons.

1 February 2013 at 22:44  
Blogger The Way of Dodo said...

bluedog

Clearly you've never had dealings with Official Solicitors. I have, frequently and they side with no one but the person who needs they have to represent in Court. An, of course, they would have met with SK.

As for the rest, pure speculation coloured by your own very limited experience in these matters and your romantic outlook. The 'rule of optimism' can be a fatal error in these situations.

Did your late mother, God rest her, have brain damage? It is not a *civil service* position to assess the best interests of SK and attempt to put appropriate care in place. Indeed, it would be far cheaper for the State to place him at home and leave it to JK. It is to the professionals credit they did not just leave the situation alone.

2 February 2013 at 00:20  
Blogger bluedog said...

This comment has been removed by the author.

2 February 2013 at 10:42  
Blogger bluedog said...

Mr Dodo @ 00.20 says, 'Indeed, it would be far cheaper for the State to place him at home and leave it to JK.' Well we can agree on that at least.

But the quantitative is not the point.

It's the qualitative aspects of SK's life that this thread and His Grace's post are about. You have yet admit this point or recognise that SK may be happier living with JK rather than in some souless NHS institution. Even with my 'limited experience' I can understand that.

Can you?

As for 'Clearly you've never had dealings with Official Solicitors.', no, but I've had dealings with solicitors in general. What I do know is that if the Crown is the prosecutor, as may be the case, the defendant will receive a brief from the Crown. Without sighting that claimant's brief neither of us know the detail of the Crown case for annullment of the marriage.

One is left with the impression that in the circumstances of this case the role of the Official Solicitor was to validate a pre-agreed outcome. But again, without sighting the defendant's brief, nobody can be certain.

2 February 2013 at 11:07  
Blogger The Way of Dodo said...

bluedog

The Official Solicitor, appointed by the Court, is responsible for presenting SK's interests before the Judge. They are appointed when someone lacks capacity to represent themselves or to give instructions to a barrister, as here. Are you doubting the integrity of the Official Solicitor in this case? On what grounds? He will have consulted with SK and ascertained his views.

As to the quality of SK's life, without access to assessments of his needs and without details on his current 'placement' and whether JK could adequately care for him, it is impossible to answer. Again, it is mere speculation to suppose he would be better with JK.

Oh, and in Court of Protection Hearings the parties are not defendants and prosecutors and, so far as is possible, the proceedings are non-adversarial with evidence and opinion presented and questioned by counsel.

2 February 2013 at 11:22  
Blogger bluedog said...

Dodo @ 11.22 said, 'so far as is possible, the proceedings are non-adversarial'.

A pity. Sounds a bit like the rule of optimism and a romantic illusion. That the hearing can be all touchy-feely (non-adversarial) validates my point that this seems to be a pre-arranged stitch-up.

2 February 2013 at 11:53  
Blogger The Way of Dodo said...

You do know what the term non-adversarial in a legal context means?

It is the presentation of evidence and competing arguments without the drama and theatre of robes and gowns, witness boxes and hostile cross-examination.

Rather like the hearings offered by Solomon where the judge listens to all sides of a case, questions the participants freely, allows them to more informally interact and present their concerns, then arrives at a judgement. All very civilised, I'd say when dealing with the intimate and personal details of private lives.

And, of course, there is a right of Appeal and Judicial Review if any party feels aggrieved by the process or that a point of law has been transgressed.

2 February 2013 at 14:11  
Blogger bluedog said...

'You do know what the term non-adversarial in a legal context means?'

Oh dear, it's come to this. Mede-ee-ay-shun. Usually hopeless unless the mediator is a retired judge or QC.

In the context of Sam and Jane mediation hardly seems relevant. Brother CK has declared war on their marriage and is evidently not planning to compromise or have any regard for concerns that either of them may have.

As for appeal, the question is specious in that the aggrieved party, Jane, lacks the resources to initiate any such action.

In summary, CK has destroyed his brother's marriage and condemned him to an NHS home, possibly persuant to the Mental Health Act.

All in a day's work.

One can only pray that some philanthropic individual indulges in a bit of champerty and takes CK to the cleaners.

3 February 2013 at 11:42  
Blogger The Way of Dodo said...

Well, that's your interpretation of events. However, a Judge with a less romantically inclined predisposition considered the evidence and the arguments and saw things differently. Oh, and unlike us, he was in possession of all the facts and medical assessments and wasn't just joining the odd dot together.

Let's conclude by wishing both JK and SK well and all the members of their respective families.

3 February 2013 at 13:52  

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