Reviews of The International Protection of Adults (Frimston and others); The Jurisprudence of Lord Hoffmann (ed Davies and Pila)

The International Protection of Adults

R Frimston, A Ruck Keene, C van Overdijk and A Ward

ISBN: 978-0198727255
PRICE: £175

Two facts are indisputable. The first is that there are and will continue to be adults with challenged decision-making ability by virtue of Alzheimer’s disease, learning disability or other causes. The second is that human migration is increasing, with accompanying cross-border considerations regarding welfare and management of the property and affairs of such persons. Where they are subject to legal protection regimes there is a need for synergy between the laws of the adult’s state of origin and their state of residence in terms of recognition of means of protection, including proxy and supported decision-making mechanisms. The Hague Convention on the International Protection of Adults 2000 (“Hague 35”) seeks to address this. The International Protection of Adults, in turn, seeks to explain and provide guidance in this complex area of law and practice.

The book’s editors, who also author some of the chapters, are four expert practitioners in the field – Richard Frimston, Alex Ruck Keene, and Claire van Overdijk (all practising from London), and Scotland’s Adrian Ward of TC Young and convener of the Law Society of Scotland’s Mental Health and Disability Subcommittee. Weight to the tome is also provided by a foreword (in French and in English) by Emeritus Professor Paul Lagarde of Université Paris 1 Pantheon-Sorbonne, and the many highly regarded contributors to the chapters. It is, however, impossible to give anything other than a very broad and descriptive overview of the book within the confines of this review.

The book’s structure is clear and robust in terms of context and information relevant to practice. It starts, in Part I, with an overview of relevant legal principles. This includes chapters on pertinent definitions and how mental capacity and adult guardianship laws operate in common and civil law systems, as well as property, other affairs, health and welfare aspects of the international protection of adults. It also contains a chapter on cross-border protection in the context of non-Hague 35 states which, amongst other things, illustrates the real difficulties faced in the absence of adoption of Hague 35 requirements. This issue is widespread given that of the only 15 states that have to date signed the convention, a mere eight have actually ratified it. Moreover, whilst a state party to Hague 35, the United Kingdom has currently limited such ratification to Scotland although it is hoped that this may be extended to the other UK jurisdictions before long.

Part II provides a description and an analysis of the background to and provision of Hague 35, and Part III details the existing incapacity and capacity laws in Hague 35 and non-Hague 35 states. First, UK jurisdictions, Ireland, the Isle of Man and Jersey are discussed. Other Hague 35 states are then considered (Austria, the Czech Republic, Estonia, Finland, France, Germany and Switzerland), followed by 29 non-Hague 35 jurisdictions (including the United States of America, Australia, New Zealand, Canada, Brazil and some Scandinavian, European and Asian states). Reference to relevant legislation and case law is included in each chapter.

Finally, Part IV contains nine useful case studies. These demonstrate issues arising in connection with recognition of proxy and supported decision-making arrangements between Hague 35 and non-Hague 35 jurisdictions (France and England/Wales, Italy and England/Wales, Scotland and Italy, Florida and England/Wales), and between non-Hague jurisdictions (California and England/Wales). Statutory wills in a cross-border context (England/Wales and France, and Florida and England/Wales), and cross-border placements (Ireland and England/Wales) are also considered in such case studies.

In addition to the information provided in the various chapters, the book’s appendices provide supporting materials by way of reference, such as the text of Hague 35, an explanatory report of it by Professor Lagarde, and reproductions of various Hague 35 certificates together with relevant Council of Europe recommendations and articles from the UN Convention on the Rights of Persons with Disabilities (UNCRPD). There is also a glossary of terms at the beginning of the book and contact details for all the contributors, presumably so that readers may contact such contributors for further information should the need arise.

Clearly, a considerable number of jurisdictions are covered in, and considerable work has gone into, the book. Perhaps it would therefore be asking too much to wish to see slightly more coverage, or at least mention, of jurisdictions in, say, Asia, South and Central America and Afria. Possibly this is something to be included in any later editions? Moreover, as the editors explain in the preface, as the book, and indeed Hague 35, predominantly concern private international law, there is little reference to the UNCRPD. However, the impact that the UNCRPD will ultimately have in this area of law remains to be seen, particularly in terms of its direction regarding the right to exercise legal capacity.

As mentioned at the outset, it is impossible to do proper justice to The International Protection of Adults in a few words. Without doubt, for any practitioners confronted with cross-jurisdictional issues in the field of adult protection it provides a welcome and valuable resource.

The Jurisprudence of Lord Hoffmann

Edited by Paul S Davies and Justine Pila

ISBN: 978-1849465915
PRICE: £50

This volume contains 19 academic essays which were originally delivered as papers at a conference held in celebration of Lord Hoffmann’s 80th birthday.

Lord Hoffmann was unquestionably one of the legal heavyweights of recent times. He was born in South Africa and came to the UK in 1954 as a Rhodes Scholar to study law at Oxford. After graduating in civil law as Vinerian Scholar, and a further period in academia, he was called to the English Bar in 1964 where he had a distinguished career latterly at the Chancery Bar and was appointed Queen’s Counsel in 1977. He was a judge for 24 years until his retiral in 2009, including 14 years as a Lord of Appeal. Lord Hoffmann maintained academic links with the Oxford Law Faculty throughout his legal career, and returned as a Visiting Professor in 2009.

The essays highlight how Lord Hoffmann’s grasp of principle shines through, and the contributors comment on the excellent prose style of his judgments, combining informality, precision and humour while avoiding pomposity or cliché. In Moyna v Secretary of State for Work and Pensions Lord Hoffmann remarked: “A person who cannot cook for himself is entitled to the allowance, now £14.90 a week, whether he solves the eating problem by obtaining help, having a wife, buying television dinners or dining at the Savoy.”

Another example is his speech in Gregg v Scott [2005] UKHL 41, where the court rejected a claim for “lost chances” of recovery from cancer where delays in treatment had increased the statistical probability of an adverse outcome but the pursuer was unable to establish specific harm.

In a similar vein, Lord Hoffmann’s speech in Gray v Thames Trains Ltd [2009] UKHL 33 cut through the complications of the pursuer’s injuries and subsequent post-traumatic stress disorder following an accident caused by the defender’s negligence, but absolved them of liability for the consequences of Mr Gray’s actions when subsequently convicted of manslaughter. Lord Hoffmann dealt with the doctrine of illegality by considering its impact in narrow and wider circumstances, which distinctions have proved of assistance in subsequent cases, although the authors highlight the difficulty of producing a formula for use at first instance in all future cases.

This volume provides other examples of Lord Hoffmann’s command of a wide variety of civil law issues such as those relating to bills of lading, where he was able to draw on his wide experience as counsel in maritime disputes in relation to demise and Himalaya clauses. Lord Hoffmann had a feel for the commercial background to litigation, and provided guidance on the interpretation of written contracts in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896.

This is a very readable book. Although some of the topics are perhaps outwith our normal experience, it is fascinating to read of the impact Lord Hoffmann’s decisions have had on such a wide area of the law. The contributors clearly relished Lord Hoffmann’s academic background and the way in which he adopted a principled approach to legal problems. Somewhat inevitably, not all of the authors totally agree with all of his Lordship’s decisions, but all are unanimous in their praise.

There is a lot to be said for an academic approach to judicial writing. It is perhaps a luxury which few of us have time to indulge in, far less the breadth of legal knowledge to bring to bear on the problem before the court. This book shows the value of academic rigour and jurisprudence in judicial writing when giving judgment at the highest level.


The Author
Professor Jill Stavert, Professor (Law) and Director, Centre for Mental Health and Incapacity Law, Rights and Policy at Edinburgh Napier University Sheriff Frank R Crowe, Edinburgh
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