Reimagining the Court of Protection: Access to Justice in Mental Capacity Law

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Dr Jaime Lindsey of Essex Law School has recently published a book titled Reimagining the Court of Protection: Access to Justice in Mental Capacity Law with Cambridge University Press. Dr Lindsey provides an original account of the workings of the Court of Protection as one of the first researchers authorized to observe hearings and access the court’s files. Using original empirical data, the book takes a socio-legal approach to understanding how the Mental Capacity Act operates in practice to achieve access to justice.

Dr Lindsey contributes to the call for the reform of this important court from a procedural justice perspective, to ensure a better experience for those who use it, and to meet the requirements of access to justice.

A piece detailing further information about this book was published on Cambridge Blog and can be found here.

The Voice of the Child: A Workshop on Private Family Law Proceedings Involving Sexual Abuse

Photo by Ben Wicks

By Jaime Lindsey, Liz Fisher-Frank, Jo Harwood and Gillian Francis, University of Essex, School of Law

On the afternoon of 25 March 2021, we hosted an online workshop by Zoom exploring the voice of the child in the context of the treatment of sexual abuse allegations in private family law disputes in England and Wales. The workshop brought together a fascinating mix of over 50 attendees including members of the judiciary, practitioners, academics, policy makers, organisations supporting survivors, and people with lived experience of abuse and the family courts.

The assessment of harm to children in private law cases has recently been the focus of an expert report commissioned by the Ministry of Justice, which provided the impetus for this project. Following the review, the treatment of sexual abuse allegations has been identified as an under-researched but major threat to the safety of children.

A key aim of the workshop was to respond to the need arising from the review to build an evidence base with key stakeholders in the field, something we hope to take forward following the event. This complex and difficult area of legal practice needs to be dealt with sensitively and we were delighted with the mix of attendees who respectfully and passionately engaged with the serious issues raised by the family courts’ current approach to the challenges that exist in these cases. We hope that following the event we will have the opportunity to continue our work with stakeholders to enhance the voice of the child in private family law cases.

The workshop followed a panel presentation and discussion format, held under the Chatham House rule to ensure confidentiality for attendees, given the sensitive nature of these issues. There were 10 presentations in total, including from survivors of child abuse and the family courts, a member of the judiciary, academics and practitioners in the field. Following each panel, attendees had the opportunity to ask questions and provide comments on issues raised.

Panels covered themes including:

  • amplifying the voice of the child;
  • the role of ‘parental alienation’;
  • support and training for professionals;
  • supporting children through court;
  • legal aid and associated access to justice issues;
  • the role of the family court in responding to abuse allegations and the challenges and possibilities in doing so.

A rich variety of issues were considered, including specific legal changes as well as wider cultural factors that arguably influence this area of practice.

We are grateful to all who attended and spoke at the event for making it such a supportive and insightful discussion, as well as for the generous funding provided by the ESRC Impact Acceleration Account. Working collaboratively, we held an event that was constructive and reform-oriented with the aim of furthering the conversation in this important but challenging area.

We were delighted to receive positive feedback from attendees, including from a survivor who said, ‘I really feel empowered’ following the workshop. Another said, ‘We all thought it was a fantastic event. It was brilliantly brought together and managed with such diversity of thought and experience … this really brought home the extent and complexity of some of the issues that need addressing in the family justice system’.

A full report of the event will be available soon, which will identify core themes, recommendations and next steps that we intend to pursue. If you would like to find out more about any aspect of this project or would like to be sent a copy of the report once it is available, please contact one of the organisers at the details listed below:

Jaime Lindsey: j.t.lindsey@essex.ac.uk

Jo Harwood: jh18437@essex.ac.uk

Gillian Francis: gf17473@essex.ac.uk

Capabilities, Capacity and Consent: Sexual Intimacy in the Court of Protection

Photo by Sinitta Leunen

Dr. Jaime Lindsey, Lecturer in Law at the University of Essex has a new article published in the Journal of Law and Society. The article is entitled ‘Capabilities, capacity, and consent: sexual intimacy in the Court of Protection’ and is co-authored with Professor Rosie Harding of the Birmingham Law School.

The article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity.

The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation.

Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.

The article is published Open Access and is available here.

Protecting Vulnerable Adults from Abuse: New Publication

Photo by Külli Kittus

Dr. Jaime Lindsey, Lecturer in Law, University of Essex

Dr. Jaime Lindsey recently published an article in Child and Family Law Quarterly (Volume 32, Issue 2, pp. 157-176), titled ‘Protecting vulnerable adults from abuse: under-protection and over-protection in adult safeguarding and mental capacity law’.

The article concerns the intersection between adult safeguarding and mental capacity law; an area which raises a number of difficult issues for lawyers, policy makers and health and social care professionals when thinking about the extent to which the civil law ought to be used to respond to abuse of adults with impaired mental capacity.

The article draws on original empirical data to show that adults vulnerable to abuse are left under-protected in some cases and over-protected in others. In particular, it argues that the Mental Capacity Act 2005 has become a tool for protecting vulnerable adults from abuse. Moreover, this is done in ways that restrict and control the vulnerable victim, rather than targeting the perpetrator.

Learning from developments in the domestic abuse sphere, including the Domestic Abuse Bill currently going through Parliament, Dr. Lindsey argues that safeguarding adults law should instead focus on perpetrators of abuse by developing a Safeguarding Adults Protection Order (SAPO), instead of resorting to mental capacity law in these challenging cases.

The article is available on LexisLibrary and a copy can be requested via the University’s Research Repository here.