Reconsidering legal capacity: radical critiques, governmentality and dividing practice

Weller, Penelope

doi:10.1080/10383441.2014.993499

Cited by 12 publications

(10 citation statements)

References 27 publications

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“…Gerard Quinn argues that the CRPD requires scholars to re-conceptualise the philosophical and legal relationships thought to constitute citizenship, entitlement and the power and responsibilities of the state [15]. Quinn alludes to the conceptual developments in international human rights law that recognise human rights as entitlements adhering to socially, economically and spiritually contextualised human persons ( [14]; [31], p. 31; [32], p. 274). In human rights documents, recognition of the human context is crystallised in the statement that "all human rights are universal, indivisible, interdependent and interrelated" [33].…”

Section: Social and Legal Inclusion As A Human Rightmentioning

confidence: 99%

“…14). The disability rights movement has taken the theoretical analysis of interconnected human rights a step further by appreciating the intersections between human rights theory, feminism, critical theory, critical disability studies, and the notion of embodiment [14,22]. Disability theory responds to the documentation of the mechanisms and effects of discrimination, marginalisation, inequality and exclusion [38,39].…”

Section: Social and Legal Inclusion As A Human Rightmentioning

confidence: 99%

“…In CRPD terms, inclusion is the key to the realisation of human rights for people with disabilities. CRPD principles point to the proposition that the starting point for all decisions or procedures in the law and elsewhere is the involvement of people with disabilities [14].…”

Section: Social and Legal Inclusion As A Human Rightmentioning

confidence: 99%

“…The Convention on the Rights of Persons with Disabilities (CRPD) continues to generate vigorous debate, particularly with respect to Article 12 (Equal recognition before the law) [1][2][3][4][5][6][7][8][9][10][11][12][13][14][15][16][17][18]. The Article 12 debate is characterized by a marked diversity of opinion and sometimes heated disagreement.…”

Section: Introductionmentioning

confidence: 99%

“…The fundamental importance of the interaction between these two articles has been highlighted by Eilionoir Flynn, Lucy Series and Eilionoir Flynn and Anna Lawson [19][20][21]. Other CRPD scholars have commented on the application of Article 13 in the criminal law [14][15][16][17][18][22][23][24][25]. This article considers the application of Article 13 (Access to justice) in family law proceedings.…”

Section: Introductionmentioning

confidence: 99%

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Legal Capacity and Access to Justice: The Right to Participation in the CRPD

Weller¹

2016

Laws

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This article provides an applied analysis of Article 12 (Equal recognition before the law) of the Convention on the Rights of Persons with Disabilities (CRPD) and Article 13 (Access to justice) in the context of Article 6 (Women with disabilities). Recent literature on the CRPD has extended the analysis of Article 12 to consider its broader relevance for the interpretation of Article 13. The interaction between Article 12 and Article 13 is an emerging issue in CRPD debates. This article argues that the CRPD must be interpreted in light of current human rights theory. It provides a case study of the interaction between Article 12 and Article 13 based on the facts recited in the Court of Appeal case in the United Kingdom (RP v Nottingham City Council (2008)) and RP's petition to the European Court of Human Rights (RP and Others v United Kingdom (2012)). The analysis shows that CRPD principles could and should have been applied in RP's case. It concludes that current practices excluding people with disabilities from participation in legal proceedings are contrary to the CRPD.Laws 2016, 5, 13 2 of 13 with Article 13 (Access to Justice) ([26], para. 22). The argument advanced in this article is that RP's involvement in the legal proceedings could and should have been maintained. Rather than being excluded on the basis of a lack of mental capacity, RP should have been provided with appropriate information and support. In addition, institutional structures and processes should have been altered to accommodate her disability. The interpretation of Article 12 put forward by the Committee on the Rights of Persons with Disabilities asserts that determinations that a person "lacks mental capacity for the purposes of the law" are not permitted in a human rights compliant framework [27]. If the latter proposition is accepted, a profound shift in current practice is required.RP's case is significant because it illustrates the process and consequence of exclusion from the law. RP was a 21-year-old young woman with a mild intellectual disability who gave birth to a premature infant with significant health problems. After a period of intensive hospital treatment, the health authority initiated formal care proceedings, seeking to place RP's child with a foster family. At that time, it was determined that RP lacked the capacity to instruct her appointed solicitor. A guardian ad litem or guardian solicitor was appointed to represent RP in the proceedings. RP and her family contested the subsequent placement [26].The litigation surrounding RP provides a "case study" for the analysis of CRPD principles. Considered from a CRPD perspective, three CRPD articles are directly relevant to RP's situation: Article 6 (Women with disabilities) recognises the multiple discriminations faced by women and girls; Article 13 (Access to justice) requires state parties to facilitate the participation of people with disabilities in all legal proceedings; and Article 12 (Equal recognition before the law) asserts the right to recognition before the law [1]...

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Section: Social and Legal Inclusion As A Human Rightmentioning

confidence: 99%

Section: Social and Legal Inclusion As A Human Rightmentioning

confidence: 99%

Section: Social and Legal Inclusion As A Human Rightmentioning

confidence: 99%