What does it mean to be a carer?

Professor Ann Stewart, University of Warwick, UK.

Book Cover for ReValuing Care in Theory, Law and Policy

ReValuing Care in Theory, Law and Policy: Cycles and Connections

Why would anyone want to call themselves a carer?  Are not all of us carers in one way or another?  As feminists have long argued we all give and receive care to a greater or lesser extent throughout our lives, as friends, lovers, family or community members. Privileging ‘a carer’ is to isolate a particular form of autonomous actor when we need to recognise that all are involved in relationships that are fundamental to the functioning of any society (Herring 2013).

Yet caring is often not recognised, as a number of international organisations, academics and activists have argued in the debates over the Sustainable Development Goals (SDG) (Razavi 2007, Sepuldeva 2014, Budlender and Moussié 2013). They have called for policy development to take account of the 3 Rs – recognise, reduce and redistribute the burden of care (Elson 2008), with some success.  Target 5: 4 of the SDG equality goal requires all to: recognize and value unpaid care and domestic work through the provision of public services, infrastructure and social protection policies, and the promotion of shared responsibility within the household and the family as nationally appropriate.

While raising the political profile of unpaid care is important, framing the ‘problem’ in this way can obscure the wider implications of what feminist political economists term social reproduction (SR). Rai and Hoskyns describe it as:

biological reproduction; unpaid production in the home (both goods and services); social provisioning (by this we mean voluntary work directed at meeting needs in the community); the reproduction of culture and ideology; and the provision of sexual, emotional and affective services (such as are required to maintain family and intimate relationships) (2007, p. 300).

SR captures the crucial relationship with ‘productive’ activities while recognising the range of ‘tasks’ involved. It encourages us not to focus only on specific groups who are seen as in need of care or who provide particular forms of care.  It avoids the language of ‘burden’ while requiring us to address what feminist political economists call ‘depletion’.  Rai, Hoskyns and Thomas define depletion in SR as ‘the gap between the outflows – domestic, affective and reproductive – and the inflows that sustain health and well-being’ (2014, p. 86). Depleted social reproduction (DSR) is the level at which ‘the resource outflows exceed resource inflows in carrying out social reproductive work over a threshold of sustainability, making it harmful for those engaged in this unvalued work’ (ibid., p. 88–9). They argue that there are ‘three strategies to reverse DSR – mitigation, replenishment and trans-formation’ (ibid., p. 98). DSR is mitigated ‘when individuals attempt to lessen the consequences by, for example, paying for help’. It is replenished when ‘states or private bodies contribute to inflows’ ….). Restructuring of gender relations and the recognition and valuation of SR are necessary for its transformation (ibid., 2014, p. 99).

Thus for policy makers to recognise SR it is essential to develop appropriate ways of measuring the net cost of SR. It has to be quantified in some way.  In legal terms it has to be ‘claimable’ but on what remedial basis?  Is an individual being ‘compensated’, ‘rewarded’ or ‘remunerated’ (Sloan 2013: 24)? Each remedy points to a different way of valuing the activities associated with caring and mitigating the consequences. Compensation focuses ‘on the loss or detriment suffered by the carer as a result of taking on caring responsibilities’ (ibid.). Or is ‘the true value of the services performed by the carer as a benefit conferred on the care recipient […] recognised only if we are prepared to speak of “remuneration” or “reward”’ (ibid.)?

My chapter in the ReValuing Care edited collection (Stewart 2017) focuses on the way in which carers in the UK are understood in the domain of paid work, within recent social welfare legislation, notably the Care Act 2014 and in private law. What do we learn from the way in which carers appear in these different areas of law? What form of value is associated with these different locations? Is there any coherence in the way in which carers are valued for their activities? If so, is carer status associated with a reward for altruism, compensation for the social and economic costs associated with caring, or recompense for labour expended? Are carers valued as workers, as citizens, or as community or family members? Are they valued for doing something ‘out of the ordinary’? Through the development of this legal identity are we seeing a value being given to caring as a form of socially reproductive labour more generally?

I am presently developing these ideas further with the benefit of a Leverhulme Fellowship. My focus shifts to Kenya where I am considering the contribution of community-based ‘woman to woman’ marriage practices to the provision of care, particularly for the elderly, when there is little social protection available for the elderly. Ojwang and Kinama describe the practice:

‘Woman-to-woman marriage is the traditionally recognised union between two women, one of whom pays the dowry in order to marry the other woman. ….. [I]t is usually a union aimed at promoting the social or economic status of the women who participate in it. … The purpose of the union is the continuation of the family line and the enjoyment of a family life’. (2014, p 416)

The research seeks to explore the extent to which and the way in which such arrangements provide support and/or security for the parties involved and their dependants.  The aim is to understand whether the everyday practices of caring for older people particularly women, traditionally woven into communal relations, are changing in the socio-economic and political circumstances of contemporary Kenya. Are woman to woman marriages evolving into a way of recognising and ‘rewarding’ caring labour undertaken by younger woman for some older women who have access to some assets? How are claims for recognition particularly made by the younger woman understood in the ‘formal’ courts and within community dispute resolution practices?

References

Budlender Deborah and Moussié Rachel (2013) Making care visible Women’s unpaid care work in Nepal, Nigeria, Uganda and Kenya Action Aid Available: http://www.actionaid.org/sites/files/actionaid/making_care_visible.pdf

Elson, Diane 2008 ‘The Three R’s of Unpaid Work: Recognition, Reduction and Redistribution’, Expert Group Meeting on Unpaid Work, Economic Development and Human Well-Being, UNDP, New York, November

Herring, Jonathan (2013) Caring and the Law Oxford and Portland, Oregon: Hart Publishing

Hoskyns, Catherine and Rai, Shirin M. (2007) ‘Recasting the Global Political Economy: Counting Women’s Unpaid Work’, New Political Economy, 12(3): 297–317.

Ojwang, Jackton, B and Kinama, Emily, N (2014) ‘Woman-to-Woman Marriage: A Cultural Paradox in Contemporary Africa’s Constitutional Profile’ Verfassung und Recht in Übersee VRÜ 47: 412-433.

Rai, Shirin M, Hoskyns Catherine and Thomas Dania (2014) ‘Depletion’ International Feminist Journal of Politics 16(1): 86–105.

Razavi, S. 2007. ‘The Political and Social Economy of Care in a Development Context’. United Nations Research Institute for Social Development, Gender and Development Programme, Paper Number 3.

Sepulveda Magdalena Carmona (2014) Report of the Special Rapporteur on Extreme Poverty and Human Rights A/HRC/26/28 Geneva: United Nations

Sloan, Brian (2013) Informal Carers and Private Law Oxford and Portland, Oregon: Hart Publishing

Stewart, Ann (2017) ‘Carers as Legal Subjects’ in eds Rosie Harding, Ruth Fletcher, Chris Beasley ReValuing Care in Theory, Law and Policy: Cycles and Connections 148-164.

Caring for a Parent living with Dementia and changes in Family Relationships

Prof Elizabeth Peel, Loughborough University, UK

Elizabeth Peel is a Professor of Communication and Social Interaction in the Department of Social Sciences, Loughborough University, UK @profpeel

Book Cover for ReValuing Care in Theory, Law and Policy

ReValuing Care in Theory, Law and Policy: Cycles and Connections

Caring for a parent living with dementia is a stressful thing to do. We know quite a lot about spouses or partners who are cast in a caring role because their loved one develops dementia, but we know much less about the experiences of adult children of parents with dementia. Recent Australian research [1] has found that sixteen per cent of their sample of over 500 family carers had contemplated suicide in the previous year. We also know that dementia care disproportionately impacts women [2].

In my book chapter called ‘“It has had quite a lot of reverberations through the family”: Reconfiguring relationships through parent with dementia care’ in the Revaluing Care edited collection, I consider parent care by examining the accounts of eleven people who had cared for their mother or father. These people participated in the focus groups in the ‘Duties to Care’ project or the interviews in the ‘Dementia Talking’ project (see http://www.dementiaproject.net/).

Some of the behaviour changes in their parent had a big impact on these participants. For example Derek* said ‘it’s terrible to think your own mother doesn’t know you’, and he found it very difficult to cope when his mother thought that he was his father. Another man, James, pretended to be his father in order to keep his mother calm and content. These two examples show how parent dementia care can change how relationships in families usually are – those normative ‘rules’ about roles in families – into something new and reconfigured by the illness.

These participants also talked about how disagreement between themselves and their brothers or sisters also made parent care difficult. All but one of the people I interviewed emphasised conflicts with their sibling rather than a more collaborative approach – working in partnership to care for, and support their parent. Victoria was the lone voice, in this study, who said about her sister, ‘we keep each other sane’.

The tensions that they discussed with their siblings included having different views about the state of their parent’s health, money, and how they communicated with their parent. For instance, as Jan said ‘the worst thing was trying to communicate to my siblings how bad mum was’. In some cases, like Jan’s, relationships between siblings had ‘totally broken down’. In other cases, families had divided roles between them as a way of managing potential disagreement as well as the tasks and responsibilities involved in caring for a parent living with dementia. For example, Sue said that her sister has ‘the cash card but I keep my eye on the bank account’.

Caring for a parent living with dementia can include managing and coping with behavioural and psychological symptoms, managing finances, dealing with health and welfare decisions, incontinence, and making difficult decisions towards the end of life.  Understanding the perspectives of those providing care to a parent with dementia – a relatively common, if not anticipated experience – may offer a lens on families and the business of caring more broadly. Damien Riggs and I have written a book about kinship that further examines these, and other, issues [3]. Our book Critical Kinship Studies was recently published by Palgrave Macmillan.

* These are not participants’ real names.

References

[1] O’Dwyer, S.T., Moyle, W., Zimmer-Gembeck, M. et al. (2016) Suicidal ideation in family carers of people with dementia. Aging & Mental Health, 20(2), 222-230.

[2] Erol, R., Brooker, D. & Peel, E.  (2016) The impact of dementia on women internationally: An integrative review. Health Care for Women International, 37(12), 1320-1341. Available: http://www.tandfonline.com/doi/full/10.1080/07399332.2016.1219357

[3] Riggs, D.W. & Peel, E. (2016) Critical Kinship Studies: An introduction to the field. London: Palgrave Macmillan. Available: http://www.palgrave.com/it/book/9781137505040

Now Published: ReValuing Care Edited Collection

We are delighted to announce the publication of our edited collection, ReValuing Care in Theory, Law and Policy: Cycles and Connections, edited by Rosie Harding, Ruth Fletcher and Chris Beasley. This collection is the main academic outcome of the AHRC-funded ReValuing Care Network. The network, that was funded from 2012-2014 facilitated the development of new interdisciplinary connections between academics from across the social sciences and humanities with interests in legal and political responses to the challenges of care.

Over the next few weeks, we will be posting blogs from some of the collection’s contributors, outlining the main arguments in their chapters. In the meantime, the introductory chapter is available to view for free on the Routledge website:
https://www.routledge.com/ReValuing-Care-in-Theory-Law-and-Policy-Cycles-and-Connections/Harding-Fletcher-Beasley/p/book/9781138943193

Book Cover for ReValuing Care in Theory, Law and Policy

ReValuing Care in Theory, Law and Policy: Cycles and Connections

Care is central to life, and yet is all too often undervalued, taken for granted, and hidden from view. This collection of fourteen substantive and highly innovative essays, along with its insightful introduction, seeks to explore the different dimensions of care that shape social, legal and political contexts. It addresses these dimensions in four key ways. First, the contributions expand contemporary theoretical understandings of the value of care, by reflecting upon established conceptual approaches (such as the ‘ethics of care’) and developing new ways of using and understanding this concept. Second, the chapters draw on a wide range of methods, from doctrinal scholarship through ethnographic, empirical and biographical research methodologies. Third, the book enlarges the usual subjects of care research, by expanding its analysis beyond the more typical focus on familial interconnection to include professional care contexts, care by strangers and care for and about animals. Finally, the collection draws on contributions from academics working in Europe and Australia, across law, anthropology, gender studies, politics, psychology and sociology. By highlighting the points of connection and tension between these diverse international and disciplinary perspectives, this book outlines a new and nuanced approach to care, exploring contemporary understandings of care across law, the social sciences and humanities.

 

ReValuing Care Through Law: Challenging the Bedroom Tax and Benefit Cap on Care

Professor Rosie Harding
Birmingham Law School | email: r.j.harding@bham.ac.uk

It has been an interesting week for news about care giving and receiving in English Law. Two stories have made the news that reflect challenges to the value placed on care in our society: first, the Government’s announcement that recipients of Carers Allowance are to be exempted from the benefit cap; second, news about the Court of Appeal’s decision that the ‘bedroom tax’ (or, as the Government would prefer it to be called, the ‘Removal of Spare Room Subsidy’) is unlawfully discriminatory on grounds of disability and sex.

The news that carers in receipt of Carers Allowance are to be exempt from the Benefit Cap came during debate on an amendment to the Welfare Reform and Work Bill on 25 January 2016. Lest anyone be deceived into thinking that the current Conservative Government is suddenly going soft on benefit recipients, it is important to remember that the impetus for this change came from a judicial review decision of the High Court in October 2015. In Hurley & Others v Secretary of State for Work and Pensions [2015] EWHC 3382 (Admin), Mr Justice Collins held that the benefit cap regulations, whilst not unlawful in their entirety (considering the very high standard of unreasonableness that is required at judicial review) were nonetheless indirectly discriminatory on the basis of disability in a way that was not objectively justifiable. A government amendment is expected during the forthcoming House of Lords Third Reading debate that fully exempts those in receipt of Carers Allowance from the benefit cap. The change will bring those in receipt of carers allowance into line with others exempted from the cap.

The Court of Appeal decision in R (On the Application Of Rutherford & Ors) v Secretary of State for Work & Pensions [2016] EWCA Civ 29 has not met with the same level of agreement from the Government. In that case, the Court of Appeal found that the ‘bedroom tax’ regulations were unjustifiably discriminatory on the grounds of disability (in the case of the grandparents of a severely disabled teenager), and on the grounds of sex (in the case of a woman at serious risk of violence from an abusive ex-partner). In both of these cases, the claimants had been in receipt of Discretionary Housing Payments (DHPs) to mitigate the effects of their deduction under the bedroom tax rules. Importantly, others in similar positions may not be in receipt of DHPs, as the nature of the scheme, and the discretionary basis of it, means that provision varies across local authorities.

Since this decision, the Government has announced its intention to appeal to the Supreme Court, and a hearing on this case is to be joined with the appeal in R (MA and others) v the Secretary of State for Work & Pensions [2014] EWCA Civ 13, another case concerning the discriminatory nature of the ‘bedroom tax’ which is due to be heard by the Supreme Court in early March 2016. In the meantime, the Government have issued a bulletin to staff responsible for Housing benefit advising that “no action needs to be taken by local authorities following this judgment.” [1]

Leaving aside the legal issues that will be considered by the Supreme Court in a few weeks’ time, the news this week about regulating care and caring raises more general issues of interest. It reminds us of the necessity of a strong system of judicial review, with access to legal aid to support vulnerable claimants. While some of the more negative aspects of changes to the legal aid system for judicial review were undone following a challenge by solicitors, the policy of ‘no permission, no fee’ remains in place. The former Justice Minister, Chris Grayling was open about his desire to curb judicial review, which he berated “left-wing campaigners” for using as a “promotional tool” and to “to try to disrupt Government policies.” [2]

Given the rise in the use (and attempted use) of statutory instruments (which can be passed without democratic debate) rather than Acts of Parliament (which require full Parliamentary debate and the approval of both Houses) for controversial issues like tax credit cuts, or fox hunting, since the Conservatives came to power in 2010,[3] any attempts to restrict judicial review need to be taken very seriously indeed.

These cases also remind us of the importance of the Human Rights Act 1998 in defending the most vulnerable in our society. Both of these cases concerned challenges to the legislation on the basis of discrimination outlawed by Article 14 of the European Convention on Human Rights. In both cases it was the fundamental human right not to be discriminated against on the basis of a protected characteristic that was the reason for the decision (in these cases it was disability and sex) .

This Government wants to repeal our Human Rights Act. We still await the detail on proposals on a Bill of Rights which we have been told might be fast tracked into law by this summer [4]. These cases where Convention Rights safeguard the rights of vulnerable people with disabilities, their carers, and other whom the State has an obligation to protect from violence and harm remind us of the value of our Human Rights Act, and the high cost that repeal of it could place on vulnerable people.

I look forward to seeing the exemption from the benefit cap for carers come into law without delay. I also await the Supreme Court’s decision in the forthcoming appeal on the bedroom tax cases with interest. We must not, however, be complacent. The law’s ability to ensure that an appropriate value is placed on caring is dependent both on fair access to judicial review, and on the effective domestic protection of our Human Rights. We must safeguard both.

[1] From HB-U1-2006, downloaded from http://www.disabilityrightsuk.org/news/2016/january/bedroom-tax-no-change-dwp-appeals-court-case-and-issues-guidance.
[2] http://www.dailymail.co.uk/news/article-2413135/CHRIS-GRAYLING-Judicial-review-promotional-tool-Left-wing-campaigners.html
[3] http://www.independent.co.uk/news/uk/politics/government-accused-of-waging-war-on-parliament-by-forcing-through-key-legal-changes-without-debate-a6820176.html
[4] http://www.independent.co.uk/news/uk/politics/british-bill-of-rights-to-be-fast-tracked-into-law-by-next-summer-a6698261.html

Legal experiments on the pathway to free, safe and legal abortion care?

As some of you will have seen, several Network members were involved in a project this past year, which culminated in the publication of draft abortion legislation for Ireland, see here and here. 10 academic lawyers acted as legal experts to a commission appointed by Labour Women to look into options for #Repealthe8th, repeal of the constitutional amendment which makes the right to life of the ‘unborn’ equal to the right to life of the pregnant woman in Ireland.  The draft legislation which we produced, under the leadership of Mairead Enright and Vicky Conway, is legally compliant with international human rights norms, but is not our ideal legislation.  Rather it was the result of the consultation process in which we were involved and was published as the results of a legal experiment, for others to repeat, modify, evaluate and criticise.  Labour Women did not accept this draft and went onto publish their own version, see here.

For other short comments on this process see here, here and here

ReValuing Care in Theory, Policy and Practice: Cycles and Connections

Link

Rosie, Ruth and Chris are currently putting the final touches to the edited collection developed from some of network’s activities.  Many thanks to all our fantastic contributors.  You can find out more about the book here. It will be published in Routledge’s Social Justice series in 2016.

Here’s the summary from the Routledge website: In light of contemporary debates and challenges, this book introduces a new framework for articulating the value of care. Existing work on care has cohered around three key themes: the need to value caring and domestic labour in law and society; the utility of a feminist ethics of care; and latterly, the limitations of care as a normative and conceptual framework. The proposed collection expands these themes: both theoretically, and in a movement beyond the usual focus on familial interconnection, to also include professional care contexts, care by strangers, and care for and about animals. Containing sixteen original analyses of care practices across a range of interdisciplinary and international contexts, it formulates a more nuanced ‘cycles’ approach to care that captures how subjects move between instances of care-receiving and care-giving. In this respect, the book proposes an approach to care that centralises embodied experiences of responsiveness and affect – both in relation to caring for and caring about different people, practices and places.

Residence Rights for Carers of Union Citizen Children before the Court of Justice of the European Union

Residence Rights for Carers of Union Citizen Children before the Court of Justice of the European Union: Some Reflections on the Pending Case of Chavez-Vilchez and Others

by Dr. Fulvia Staiano
Postdoctoral Researcher, School of Law, UCC Cork
fulvia.staiano@ucc.ie

In the currently pending case of Chavez-Vilchez and Others [1] , the Court of Justice of the European Union (CJEU) was presented with two questions on the limits and scope of the principles established in its landmark Zambrano [2] judgment. These question, in particular, aimed to ascertain the scope of the principle established in Zambrano (and subsequently clarified in Dereci [3] ), whereby a third-country national parent of a child who is a citizen of a Member State enjoys a right of residence on its territory only when it can be said that the child would be forced to leave the Union in case of expulsion of the parent.

The Chavez-Vilchez case concerns a group of third-country national mothers who are the primary carers of their Dutch citizen children. The involved women opposed the Dutch authorities’ refusal to grant them with residence rights, motivated by the view that in case of their expulsion, the Dutch fathers of their children could still provide them with the necessary care. They submitted that they have sole parental authority and custody over their children, while the respective fathers are unwilling or unable to take care of them. In this light, the referring court has asked the CJEU to assess two main issues, both related to the interpretation of Art. 20 TFEU. First, it seeks to determine whether a Member State must grant the right to reside on its territory to a third-country national parent who carries out the primary care of his or her minor child, when the latter is a citizen of that Member State. Second, it asks whether for this purpose it is relevant that the legal, financial and/or emotional burdens do not weigh entirely on the primary carer, and whether it must be proved that the other parent is unable to assume responsibility for the care of the child.

These questions offer the CJEU with an opportunity to provide important insights into its understanding of care, particularly in relation to the quality and intensity of the carers’ involvement in their children’s upbringing for the purpose of qualifying them as indispensable. As is known, the CJEU has consistently granted residence rights to third-country national parents of Union citizen children on the grounds of the care provided by the former to the latter. In a first group of cases, this recognition was linked to the possibility for Union citizen family members to exercise their freedom of movement within the territory of the Union . Starting from the Zambrano judgment, residence rights for carers were also detached from the exercise of free movement and linked to the enjoyment of the substance of the rights attached to EU citizenship.

With the sole exception of its Carpenter judgment, in this case law the CJEU has so far consistently used the expression “primary carer” in respect to third-country national women involved. It was precisely this role of primary carer that prompted the conclusion that such care was essential for their children’s enjoyment of the rights either connected to their own Union citizenship or stemming from their father’s Union citizenship. The CJEU has not so far clarified the meaning of the notion of primary carer . However, this expression has arguably been used to refer to the essential and indispensable character of the care provided by a parent, and to the consequent dependence of Union citizen children from said parent.

On the other hand, in more recent judgments concerning third-country national fathers, i.e. in Zambrano and Dereci, the expression “primary carer” cannot be found. In the case of Zambrano, the dependence of the involved children from their father’s right to reside in Belgium was not assessed in terms of care at all, but rather inferred from the fact that both Mr. and Mrs. Zambrano – being irregularly resident third-country nationals – would be forced to leave the Union territory in case of denial of residence rights. In Dereci, the CJEU also overlooked the degree of involvement of Mr. Dereci in his children’s care, since his wife’s Austrian citizenship – and related right to reside in Austria – meant that their children would not be forced to leave the Union territory in case of his expulsion.

In this light, parental care does not appear to play a crucial role in the test carried out by the CJEU concerning the possibility for Union citizen children to fully enjoy the substance of the rights recognised by virtue of their status. The citizenship of both of their parents, in particular, can play an overriding role in this assessment.

Precisely for this reason, the outcome of the Chavez-Vilchez case will deserve specific attention. The presence of Union citizen fathers in the present case may indeed not be considered as a decisive factor to determine that the involved children would still be able to enjoy the substance of rights related to their Union citizenship in case of expulsion of their mothers. The lack of involvement of such fathers in their children’s care and upbringing, and their unwillingness or inability to ensure such an involvement in the future, will necessarily play a role in the CJEU’s assessment. This case, therefore, has the potential to foster key judicial clarifications on the meaning of primary care, on the degree and type of involvement necessary to consider parental care as indispensable and irreplaceable, as well as on the type and degree of fatherly involvement in childcare that may be reasonably expected and required in this context. A finding of the CJEU in the sense of recognising third-country national parents with residence rights on the grounds of the primary character of the care provided to their children would constitute a crucial development, bringing reproductive work to the fore and opening new perspectives for those devoted to it.

[1] C-133/15, Chavez-Vilchez and Others v. Raad van bestuur van de Sociale verzekeringsbank (Svb) and Others, lodged on 18 march 2015 [pending]. For an account of the factual grounds of the case, see Anouk Biesteker, Lukasz Dziedzic, Lorena Navia-Rodriguez, Gareth T. Davies and Janneke De Lange, Expert Opinion on Issues arising from the Pending Case of Chavez-Vilchez and Others (C-133/15), 30 June 2015, summary in English available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641773 [last accessed on 28 October 2015].

[2] C-34/09, Gerardo Ruiz Zambrano v. Office National de l’Emploi, judgment of 8 March 2011.

[3] C-256/11, Murat Dereci and Others v. Bundesministerium für Inneres, judgment of15 November 2011.

Caring about P in the Court of Protection: the Re X scenario

by Jaime Lindsey, PhD Candidate and Teaching Associate at the University of Birmingham ( j.t.lindsey@bham.ac.uk)

In the recent Court of Appeal case, Re X [1], the judges’ obiter comments were certainly timely. The case concerned Deprivation of Liberty Safeguards (DOLS) cases under the Mental Capacity Act 2005 (MCA). The case itself turned on the question of whether P (the subject of the court proceedings) had to be a party to the proceedings in which they would potentially be deprived of their liberty. Whilst the Court of Appeal held that they did not have jurisdiction to hear the appeal, they made their feelings clear that P should always be a party to DOLS proceedings.[2]

Under the MCA, individuals can, in certain circumstances, be deprived of their liberty in a care home or hospital for the purpose of being given care or treatment.[3] Further, a person who may be deprived of their liberty outside of a hospital or care home, but still with sufficient degree of State involvement, would also require Court authorisation for the deprivation of liberty.[4] Many of us would expect that depriving a person of something so fundamental as their liberty should, at the very least, require them to have some input into the discussion. In fact, the ECtHR jurisprudence requires that a person who is to be deprived of their liberty should have access to a court and the opportunity to be heard.[5] This is not only important on an academic level; if a person who does not wish to be deprived of their liberty forcefully resists it, then the measures which need to be taken against them are surely an important factor for any court to consider before making an authorisation.

Yet this should not only be the case for removing somebody’s liberty. In my view, a more compassionate and inclusive approach should apply more broadly to the Court of Protection’s entire jurisdiction. In fact, new Court of Protection rules require the court to, at the very least, consider whether P should be required to participate in the proceedings and this is certainly a step in the right direction.

Involving P in the capacity question

As of 1st July 2015, the new Court of Protection (Amendment) Rules 2015 came into force. They require, amongst other things, that the Court considers whether it should make one of a number of directions relating to P’s participation in the proceedings (new Rule 3A Court of Protection Rules 2007). The possible directions it can make include: (1) joining P as a party (2) appointing a legal (or otherwise) representative for P (3) requiring P to address the judge (4) any alternative direction meeting the overriding objective. Whilst these rules certainly could have gone further, they show the Court’s increasing awareness of the greater need for P’s involvement.

Rule 3A is certainly an important step forward. It should ensure that judges and the parties are alive to the question of P’s involvement. Actually, involving P should be seen as a positive way to assist the Court in deciding whether he or she has capacity; a large part of the Court’s jurisdiction in health and welfare cases is about determining whether or not a person has the capacity to make a decision in the first place and this should not be forgotten. Clearly there will be cases where the capacity question is clear from the outset, for example consider the brain damaged adult on life support, but many more cases will be borderline and sometimes will involve adults who have no mental or learning disability at all.[6] Either way, to the extent that it is possible to do so and for capacity determinations at least, P should always be involved with proceedings.

A more inclusive approach?

The new rules should certainly go some way in achieving a more inclusive approach to decision making in the Court of Protection and are to be welcomed. However, the extent to which, and in what way, the options open to the Court will be used will need to be examined following implementation. A major factor in the increased involvement of P in proceedings will be the lawyers, social workers and carers who are involved in the case; if they see the benefit of involving P and argue in favour of this in court then is a judge really likely to refuse? Particularly in light of the obiter comments of the Court of Appeal in Re X, albeit that was in a slightly different context. In fact, the onus is not only on the judge in the case to consider this but it is also on the parties who can make an application to request such a direction. Those who know and work with P, and the lawyers on all sides, should be encouraged and feel empowered by recent developments to request P’s involvement.

The power of the Court of Protection in affecting the lives of individuals who fall under the MCA regime, both for the positive and negative, is enormous. In some ways, whether or not the outcome of the cases is any different as a result of the involvement of P is not the measure of success; what is vital is that people feel that their voice is heard, particularly in relation to decisions affecting their own lives. This empowers people to “buy in” to the ultimate decision that might be made on their behalf. That said, involving P in the decision making process will hopefully lead to better and more context sensitive decisions being made and the new rule 3A is a first step in achieving this.

[1] Re X [2015] EWCA Civ 599

[2]Ibid per Black LJ at para 108

[3] Pt1 s.1(2) MCA

[4]Under s.16(2)(a) MCA

[5]Winterwerp v The Netherlands [1979] 2 EHRR 387

[6] See for example IM v LM and AB [2014] EWCA Civ 37

Inheritance System and Care – Part 2

by Dr Antu Sorainen, Title of Docent, Academy of Finland Research Fellow, University of Helsinki, Gender Studies (antu.sorainen@helsinki.fi)

“It’s almost more important for a gay person to write a will than almost any other group in society. When writing a will, an LGBT person will have been able to give consideration to people and organisations that have had a positive effect on their life: they are not simply choosing their blood relatives to inherit with no regard to whether they deserve it”, responded the UK lawyer Siôn Hudson – who regularly drafts wills for people from all around Cambridge – to my first blog from 31 May.[1]

In this second blog I am discussing why it matters for queer people how governments seek to reform inheritance tax laws. In my view, sexuality is deeply implicated in the distribution of wealth through inheritance system. Inheritance taxation is under scrutiny in Europe: and an urgent matter when we think about inheritance from the point of view of queer relationships. The trend to abolish inheritance taxes has direct bearings on the organization of queer care, both structurally and at personal level, as the decline of public welfare puts more ideological, political and managerial stress on private care.

If queers do not write wills to support financially their friends, lovers and community (a fact derived from by my research data and practicing lawyers’ experiences), the queer community will depend more than before on the co-incidences of blood ties and will be exposed to familial and social homophobia.

***

My case study is the Nordic welfare countries where finance economics and political populism are currently feeding on social injustice in terms of inheritance taxation. Sweden abolished inheritance tax in 2005 in favour of capital gains tax, meaning that property is taxed not when inherited but only when realized.[2] Norway abolished inheritance tax in 2014, though it remains in Denmark and Finland. The latter country, however, seeks to follow the lead of Sweden and Norway; a new government has declared that intergenerational transmission in family firms will be advanced through reducing inheritance tax, and that capital gains tax and “other options” will be evaluated.

Finland risks a lot. Even in the equality “paradise” of Sweden, family background (status, education level, surname) correlates with the individual’s wealth path in society. This social factor arguably only heightened when capital gains tax was introduced. As one consequence of the cutting of inheritance tax, flats now circulate within families even for generations because the capital gains tax is rather high (30%) in Sweden. Rich families do not sell their flats but pass them on as tax-free legacies. This influences on the gentrification process in the biggest cities, and also the continuing difficulty of class travel in society.

As an example of how capital gains tax leads to socio-economic stagnation and creates a class glass ceiling for queers, we might take the example of Finnish immigrants to Sweden. Many Finns moved to Stockholm, Gothenburg or Norrköping suburbs in the 1960s to live on factory jobs. This mass migration was one consequence of the rapid urbanization of the Finnish society, which left small farmers without a future in their own country. These rural migrants were accompanied by a significant number of Finnish lesbians and gays who moved to Sweden in the 1970s as the sexual atmosphere was much more liberal there.[3] These immigration generational cohorts are now getting elderly, and if they had children these are now properly ‘swedizised’. Even if some of them are economically well-off, they are often without any hope of ever buying a flat in city centres since valuable flats are circulated through the inheritance system in a number of wealthy Swedish families.

Marriage would open a route to this circle of inherited flats – but marriage was not a legal option when Finnish queer immigrants were younger. These flats are not on the open market for other immigrants or Sweden’s own nouveau rich, either. It is clear that this does not help to overcome social inequalities or to maintain big Swedish cities as a buzz of trade and liberal life supported by mobility and difference.

***

Capital gains tax thus impacts on social minorities in negative ways. It will lead to increasing accumulation of wealth in the hands of a few. This “weather forecast” could be given to all societies with a big ratio of social inequalities, such as the UK.

John Stuart Mill advocated, for one, high inheritance taxes. For Keynes, inheritance was inherently unequal and not to be defended albeit he valued the right for economic gain – but the conservative agenda thrives and we lack critical voices based on proper socio-legal impact analysis. A shift in the direction of capital gains tax would result in an increase in socio-economic homogamy, the effects of which would impact the stability of minorities in society – those whose intimate relations, reproductive choices and support relations do not accord with the law’s categorizations. Queer sexualities have relevance for the inheritance institution’s categories in that the inheritance system distributes wealth mainly in small heterosexual family circles and potentially neglects “other” relationship categories than those based on blood and heterosexual marriage.

Adopting the capital gains tax may benefit some lucky queers born in wealthy and liberal families but keeping the inheritance tax and adjusting the system of inheritance taxation could benefit many if not all. What I would suggest is to have a better look at inheritance tax categories to make them sensitive to difference outside of conjugal norm and to better hinder tax avoidance of the rich through family firms.

[1] http://www.millersands.com/the-importance-of-having-a-will-the-lgbt-perspective/

[2] Magnus Henrekson and Daniel Waldenström. 2014. ”Inheritance Taxation in Sweden, 1885–2004: The Role of Ideology, Family Firms and Tax Avoidance.” http://www.ifn.se/wfiles/wp/wp1032.pdf

[3]Sorainen, Antu. 2014. “Two Cities of Helsinki: One Practically Queer and One Liberally Gay.” In Matt Cook and Jennifer Evans (eds.) Queer Cities, Queer Cultures: Europe Post 1945. London: Bloomsbury, 211-239.

Inheritance System and Care: Queer will-writing

by Dr Antu Sorainen, Title of Docent, Academy of Finland Research Fellow, University of Helsinki, Gender Studies (antu.sorainen@helsinki.fi)

Laurie Anderson, in a recent interview with the Guardian, was asked: “What song would you like played at your funeral?”
Answer:
“Not my problem.” [1] [2]

Even though it is a witty remark, I beg to disagree. Arranging one’s after-life could be of a great benefit for those one cares about. Kinship, care and inheritance belong to the same package. The wealthy always knew this and took care of their economic interests through marriage and bloodline based inheritance arrangements. Not many of those at the margins of the society think that they need to write wills, seek to arrange their financial aftermaths, or indeed, funeral rituals to make sure that their kinship tradition lives. However, those few queer funerals that I have attended, carefully following the wishes of the deceased person, have been really important for the queer community, including at a symbolic and performative level, building and passing on the tradition, history, encouragement and memories of many important aspects of the past and present queer struggles.

In my view, we should actively advocate will-writing among those social groups who traditionally have not “owned” this tradition as theirs, especially under the current neoliberal and conservative political and economic currencies targeting the inheritance system that I will discuss in my next blog post. Activists in the legal field should encourage people to take care of their inheritance arrangements as far as they can, as an important and oft-neglected form of care; in particular, queer care. By this, I mean that inheritance could be conceptualised and re-imagined as not only transformation of property but also as taking care of those who actually matter in one’s life: directed towards friends, lovers, and community. Will-writing offers a pathway to new identifications: we could re-imagine new concepts for care practices that the society tries to hide from the people who do not follow its dominant norms.

Daniel Monk (2013) [3] argues that will-writing potentially offers a site for queer acts. He suggested that they as well as being the scene for an ultimate declaration of one’s final will, provide possibilities for not only to pass on property but also for passing of other kinds of “goods” such as coming-outs, supporting the queer community and/or the chosen family, friends or lovers, disinheriting the possibly homophobic blood relatives, or publicly recognising the “real” care and support relations in one’s life.

Will-writing is a reflection of an ideal of autonomity of the modern individual. If sexually or otherwise marginalised people would look at will-writing as their right to define the posthumous destiny of not only their wealth but also of the well-being of people who they really care for, also outside of the blood relatives circle, they might more often come to think to write wills for supporting their lovers, friends, community, and other real life-carers. In this way, as a mechanism for transmitting property from one person to another, and from one generation to another over time, lesbian and gay wills could have a considerable social and economic significance.

There is a particular purchase to bringing in legal thinking in the study on inheritance and socially marginalised groups since as a discipline and practice it has to deal with different kinds of relationships. The law is the classic locus for situations where categorical and interpersonal relations confront each other: the law deals with persons in relation to categories [4] . When it comes to inheritance, often even a small inheritance has made it possible for many ordinary as well as many famous people to create uncommon, radical, world-changing lives outside the pressure of the normative legal and social understanding of parenting and relationships (Sorainen 2015). [5]

Coming up  in my second blog post:
“I worry about putting my friends in a difficult economic position if I’ll add them into my will”, one of my lesbian interviewees told me. This is a legitimate concern because, in her country, Finland, her queer care and support network members would be subjected for a much higher inheritance tax than her emotionally distant siblings would be.

My next blog-post will consider how, in this way, legal categorizations privileging bloodline and/or marriage often fail to recognize the actualities of non-normative personal lives and the ”chosen heirs”. This is especially prudent as on 27 May 2015, Finland decided to seek to change its inheritance laws. At the moment, if a close blood relative or a friend inherits property in Finland, the inheritance tax is from 8- 36%. But in case of inter-generational family business inheritance, the tax is, on average, only 2,8% of the market value of the company. I discuss the effect of this on the queer community and on the dissemination of wealth throughout society.

References:

[1] http://www.theguardian.com/lifeandstyle/2015/may/16/laurie-anderson-interview

[2] When I told the anecdote at the opening of this blog to one of my gay male interviewees, he said: “In my funeral, they should play Laurie Anderson’s song Same Time Tomorrow.” The song goes like this: “And so when they say things like “We’re gonna do this by the book”, you have to ask “What book?”, because it would make a big difference if it was Dostoyevsky or just, you know, Ivanhoe.” – https://www.youtube.com/watch?v=ePMwwa436ug

[3] Monk, Daniel. 2013. “EM Forster’s will: an overlooked posthumous publication.” Legal Studies, Volume 33, Issue 4 December 2013, 572–597.

[4] Strathern, Marilyn (2005). Kinship, law and the unexpected: Relatives are always a surprise. Cambridge: Cambridge University Press

[5] Sorainen, Antu. 2015. “Queer Personal Lives, Inheritance Perspectives, and Small Places.” Nordic Journal for Queer Studies – Lambda Nordica, a special volume on Kinship and Reproduction, 3-4/2015 vol. 19.