The Vulnerability Jurisdiction: Equity, Parens Patriae, and the Inherent Jurisdiction of the Court

• Author: Margaret Isabel Hall
• Position: Associate Professor, Faculty of Law, Thompson Rivers University
• Pages: 185-225

185

(2016) 2(1) CJCCL

e Vulnerability Jurisdiction:

Equity, Parens Patriae, and the

Inherent Jurisdiction of the Court

Margaret Hall*

is paper describes how the English courts, in the “heroic act of judicial invention”,

have developed a distinct vulnerability jurisdiction, separate and apart from the

ancient jurisdiction of parens patriae, through the exercise of the inherent jurisdiction of

the court. is new jurisdiction provides a legal basis and mechanism for the disruption

of exploitative relationship contexts. e objective of that disruption is not protection

per se (the parens patriae objective), but the safeguarding of individual autonomy rights

in situations where those rights cannot be eectively exercised without intervention.

e paper concludes with a discussions of implications of the English “invention” in

Canadian jurisprudence.

* Margaret Isabel Hall, LLB, LLM is an Associate Professor in the Faculty

of Law, ompson Rivers University, British Columbia, Canada. Margaret

has published extensively in the area of law and aging, with a particular

focus on mental capacity, legal responses to exploitation, critical law and

aging, and vulnerability theory.

186

Hall, e Vulnerability Jurisdiction

I. I

II. P P  T I J   C

A. Parens Patriae

B. e Inherent Jurisdiction of the Court

III. T C: IN RE F  A

A. In Re F

B. After In Re F: Developing the Inherent Jurisdiction

IV. R SK  DL V A LOCAL AUTHORITY: D   V

J

A. Re SK

B. DL v Local Authority

V. I  C L

VI. C

I. Introduction

This paper describes how the English courts, in a “heroic act of judicial

invention”,1 have developed a distinct vulnerability jurisdiction,

separate and apart from the ancient jurisdiction of parens patriae, through

the exercise of the inherent jurisdiction of the court. is new jurisdiction

provides a legal basis and mechanism for the disruption of exploitative

relationship contexts. e objective of that disruption is not protection

per se (the parens patriae objective), but the safeguarding of individual

autonomy rights in situations where those rights cannot be eectively

exercised without intervention. In doing so, the court is responding to

relationship vulnerability, a particular quality of vulnerability that is not

dependent on or derived from personal characteristics such as age, gender,

or mental disability, although the relationship between these factors

(together with others such as economic status) may intensify relationship

1. Sir James Munby, “Protecting the Rights of Vulnerable and Incapacitous

Adults – e Role of the Courts: An Example of Judicial Law-making”

(2014) 26 Child & Family Law Quarterly 64 at 77 [Munby].

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(2016) 2(1) CJCCL

vulnerability so as to justify intervention in a particular case.2 is

response is founded on the understanding that legal/public intervention

is not the only possible source of autonomy restriction. In this way,

the vulnerability jurisdiction is conceptually rooted in the doctrine of

equitable fraud (in particular, the doctrine of undue inuence), and the

new jurisdiction is most coherently understood as an extension of the

equitable doctrine (rather than the resurgence of a new parens patriae)

in situations outside of the contractual/testamentary context and at the

instigation of third parties (public or private).

e process of “judicial invention” through which the jurisdiction has

developed has been lengthy and non-linear, generating confusion about

its source and nature. In terms of both language and origin (the decision

in the case of In Re F

3 (“In Re F”), a response to the disappearance of

parens patriae with regard to mentally incapable adults in England), the

new jurisdiction has been tangled up with the old to the extent that

it has been described (mistakenly) as a rebirth and extension of parens

patriae, “the invention … by the family judges of a full-blown welfare-

based parens patriae jurisdiction in relation to incapacitated adults” and

to other “vulnerable persons”.4

One source of confusion has been the nebulous and ill-dened

nature of the “inherent jurisdiction of the court” as distinct from parens

patriae (which is occasionally described as “the inherent jurisdiction”).

e distinction between the two is explained below. e language

of “vulnerability”, as used in the law generally and the cases discussed

here in particular, is a further source of confusion. e new jurisdiction

and parens patriae each enable public response to private vulnerability;

vulnerability is not one idea, but several. Understanding the distinctions

between these ideas is essential to understanding the nature of the new

jurisdiction and how it diers from parens patriae in purpose and eect.

2. See MI Hall “Equity eory: Responding to the Material Exploitation

of the Vulnerable but Capable” in Israel Doron, ed, eories on Law and

Ageing: e Jurisprudence of Elder Law (Berlin: Springer Publications,

2008) at 107.

3. [1990] 2 AC 1 (HL) [In Re F].

4. Munby, supra note 1 at 77.