Cross-border incapacity on a flood tide?

In Shakespeare’s Julius Caesar, Brutus famously tells Cassius:

‘There is a tide in the affairs of men,
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat,
And we must take the current when it serves
Or lose our ventures’.

In the May 2013 issue of the STEP Journal I described some of the background and history of the Hague Convention XXXV of 13 January 2000 on the International Protection of Adults (Convention XXXV), which has now been ratified by the Czech Republic, Estonia, Finland, France, Germany, Scotland and Switzerland. Cyprus, Greece, Ireland, Italy, Luxembourg, the Netherlands, Poland and the UK (excluding Scotland) have all signed but not yet ratified. On 10 July 2013 Austria also signed.

Many of us think that it is high time that England and Wales ratify Convention XXXV. We find it impossible to explain to clients why it is not fully in force and available to help, in what are usually extremely distressing and stressful circumstances.

The EU is encouraging member states to ratify and more are doing so. Ireland is now following the current and is set to overtake its backward neighbour.  On 15 July 2013, the Assisted Decision-Making (Capacity) Bill (no 83) was published in Dublin, which will bring Irish capacity law into the 21st Century and enable ratification.

If more countries were to ratify Convention XXXV, the position would often be more straightforward. The UK Ministry of Justice should be ashamed and embarrassed that England and Wales has still not yet done so.

Catch the flood tide and avoid being bound in shallows and in miseries.

Richard Frimston TEP, Chair of STEP EU Committee and Co-Chair of the STEP Public Policy Committee

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