Ageing, Gender and Family Law

Beverley Clough, Jonathan Herring

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351717496
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

This book explores the intersecting issues relating the phenomenon of ageing to gender and family law. The latter has tended to focus mainly on family life in young and middle age; and, indeed, the issues of childhood and parenting are key in many family law texts. Family life for older members has, then, been largely neglected; addressing this neglect, the current volume explores how the issues which might be important for younger people are not necessarily the same as those for older people. The significance of family, the nature of family life, and the understanding of self in terms of one's relationships, tend to change over the life course. For example, the state may play an increasing role in the lives of older people – as access to services, involvement in work and the community, the ability to live independently, and to form or maintain caring relationships, are all impacted by law and policy. This collection therefore challenges the standard models of family life and family law that have been developed within a child/parent-centred paradigm, and which may require rethinking in the turn to family life in old age. Interdisciplinary in its scope and orientation, this book will appeal not just to academic family lawyers and students interested in issues around family law, ageing, gender, and care; but also to sociologists and ethicists working in these areas.

Part 1

Care, vulnerability and age

Chapter 1

Embracing vulnerability in ageing

Our route to flourishing

Daniel Bedford

Old age is often perceived as a time of vulnerability. It is time that apparently marks the ageing body as weaker, sicker, and less dependable, in decline and frail (Bergoffen 2014). A body more exposed to harm and suffering, and less capable of safeguarding its needs and interests. This image of vulnerability in old age has been observed as exerting a powerful influence on social care practice (Fenge 2010). It has been suggested, for instance, that a culture of risk aversion in decisions affecting older people, and those with age-related impairments, has arisen due to an unhealthy focus on vulnerability, and the associated need to control and manage that vulnerability (Faulkner 2012, Bailey et al 2013).

It is an image that has also seemingly come to influence the case law on the exercise of the inherent jurisdiction of the High Court. It is not difficult to find examples of cases where vulnerability appears to be related to the fact that a person is ‘old’, ‘frail’, and ‘incapacitous’ (London Borough of Redbridge v G [2014] EWCOP 17 at para. 12), ‘elderly’ and ‘infirm’ (LLBC v TG, JG and KR at para. 40), ‘weak’, and ‘helpless’, exposed to ‘risk’, and less capable of ‘coping’ (Re MM (an adult) [2007] EWHC 2003 at para. 118, 120). Indeed, in DL, it was recognised that safeguarding of the ‘elderly’ was one of the strongest justifications for the survival of the inherent jurisdiction to protect vulnerable adults (DL v A Local Authority [2012] EWCA Civ 253 at para. 63). A number of judicial decisions appear therefore to have tied old age, as an inherent characteristic, with vulnerability, which is in turn related to notions of harm, weakness, frailty, and incapacity (Pritchard-Jones 2016). Linking old age to vulnerability in this manner has been said to contribute to a ‘negative paradigm’ of ageing, rendering it an unwelcome process to be resisted and feared (Lloyd-Sherlock 2004).

It is precisely for the reason that vulnerability has been equated with weakness and passivity that is has been resisted as a guide for policy and for law relating to ageing (Hall 2008). Martha Fineman (2012) has explored the ways in which the stigma attached to vulnerability, and its disempowering implications, has led some jurisdictions to reject vulnerability as a useful concept in elder law. Similar concerns led the UK Law Commission to reject the term ‘vulnerable adult’ in its review of adult social care legislation (2011). This follows earlier criticisms of the ‘patronising and disempowering’ connotations of the use of the term in the No Secrets (DH 2009) guidance, which had linked age as a characteristic to weakness and harm.

Alternative paradigms of ageing have emerged that reject the stereotype that older people are necessarily vulnerable or dependent. These paradigms perpetuate the idea that older people are capable of conforming to the myth of the liberal subject – independent, autonomous, and self-reliant. Paradigms of ‘successful’, ‘healthy’, and ‘active’ ageing, which have become important international and national policy tools, suggest in various ways that such an ideal is both achievable and desirable for older people (WHO 2002, DH 2005). These paradigms have all been closely linked to the Western cultural emphasis on independence, liberal autonomy, and personal responsibility, as well as the societal preference for youth (Harper 1997, Holstein and Minkler 2003, Ranzijn 2010). They encourage the myth that the changes associated with ageing are within our control, and that vulnerability and dependence are undesirable qualities that can be avoided through the exercise of personal choice, so long as the right opportunities have been made available (Boudiny 2013).

The so-called positive paradigms of ageing, as with the negative paradigms, also have the potential to be oppressive through the construction of an ideal of ageing that is unrealistic and obtainable for many older adults (Lloyd-Sherlock 2004). An ideal of an ‘“elderly elite” … [who] are robust individuals who remain physically, mentally and socially active and who are determined to remain independent and control their future’ (Gattuso 2003). This denies that ageing means change, and suggests that success in ageing be measured in terms of extent to which one is youthful. The inability to obtain such an ideal, due to disability, or frailty, can come to signify failure. These ‘vulnerable elderly’ thus become a distinct sub-group of the ageing community who are stigmatised as less than ideal, and deviant. Indeed, in light of the (false) suggestion that avoidance of dependence in old age is in our control, it is even possible to blame older adults for their failure to achieve success in ageing. This can only add to, and reinforce, a diminished sense of self-worth for those who deviate from the ideal.

The ‘negative’ and ‘positive’ paradigms of ageing appear to share in common a particular understanding of vulnerability and dependence. Both paradigms treat these conditions as negative and group-based. The ‘negative’ paradigm associates vulnerability with weakness, and treats it as a characteristic of ageing. At least on some accounts, ‘positive’ paradigms treat vulnerability and dependence as a sign of less than ideal ageing. Moreover, both models implicitly assume that vulnerability is opposed to strength, activity, and flourishing. A narrative is constructed that ‘tells us that autonomy is to be respected and promoted while vulnerability is to be pitied, remedied or alleviated’ (Diduck 2013). In such a dualistic framework, any possibility of experiencing and embracing vulnerability as vital to human flourishing, and as a source of positive meaning and strength, is already foreclosed.

This chapter seeks to draw attention to the (often neglected) positive aspects of vulnerability and the possibilities and implications for the law relating to older adults of treating that condition as vital to flourishing. The first section addresses the reasons for moving beyond an understanding of vulnerability that reduces it to harm and weakness. It highlights how oppressive practices relating to older adults are linked to the disavowal of vulnerability as a purely negative condition and the pursuit of invulnerability as the ideal. The second section proceeds to discuss how vulnerability can be conceptualised in a more positive manner. It outlines an expanded account of vulnerability as openness, affectability, and changeability. The third and fourth sections discuss the manner in which vulnerability – understood as openness – can be a source of connection, strength, and personal development in old age. The final section then turns to consider the implications of the expanded account of vulnerability for the law relating to older adults.

Pursuing invulnerability and oppressing older adults

The underlying assumption that vulnerability is a defect to be remedied, as stated above, has led to the view that it is a negative condition. This has contributed to the oppression and social exclusion of older adults. This is because, seen solely as a negative condition, vulnerability gives rise to fear and anxiety, which informs our desire to suppress, ignore, deny, and avoid it. A number of strategies are developed to eliminate that fear that negatively impacts on the treatment of older adults. First, and foremost, is the strategy of isolating older adults. This entails distancing ourselves from those older adults whose leaky, open, unbounded, and deteriorating bodies are an acute reminder of our own vulnerable and mortal condition (Shildrick 2002, Wendell 2008, Howarth 2014). Such bodies threaten to unsettle the illusion of invulnerability – a mask-like abstraction – that assuages our fears, and enables us to mistakenly think that we can escape the dangers of being vulnerable (Bergoffen 2014).

One particular mechanism by which to reinforce the illusion of invulnerability is sequestration. A number of studies have, in this regard, highlighted how having an ‘unbounded’ ageing body has been associated with a loss of personhood and a trigger for admission of an older adult to certain institutional settings, or segregation within those settings (Lawton 1998, Howarth 2014). These spaces, it has been suggested, do not always serve to improve the quality of care, but, in reality, act as a way of concealing the visible signs of vulnerability, at the same time as symbolically reinforcing the bounded, sealed, and self-contained body (Lawton 1998).

Second, seeing vulnerability as a deficiency that leads to suffering can result in a refusal on the part of a care-worker to experience vulnerability, which, in turn, can lead to the dehumanisation of older adults. As has been recognised in the nursing literature, fear of vulnerability can result in a care-worker adopting a self-protective attitude that entails detachment and emotional disengagement. This attitude has been linked to the pursuit of invulnerability (security, strength, control), and has been observed as leading to ‘hardness and coldness, a lack of closeness and feelings’ (Stenbock-Hult and Sarvimäki 2011, see also Michaels and Moffett 2008, Bouchal 2007). Pursuit of invulnerability can numb the care worker to their personal feelings and the feelings of a patient, and result in a lack of receptiveness, sensitivity, and involvement. In this regard, those who are incapable of being vulnerable with themselves and others can lack empathy – unable to engage in fellow-feeling and perceive the pain of others. Worse still, it is through being immune to the feelings of others that care workers can fail to see how they create hurt, and can go on to inflict harm (Jordan 2008, Stenbock-Hult and Sarvimäki 2011). As Daniel (1998) summarises: ‘if we deny the opportunity to participate in vulnerability, we deny the opportunity to participate in humanness, which then permits us to practice dehumanising acts’.

Third, in a cultural environment that treats vulnerability as indignity and deficient agency, it may be difficult to acknowledge dependence and accept help. To do so risks the older adult being seen by society as weak or passive, and the older adult feeling that they have become a burden on others. In order not to feel diminished, an older adult may seek to conceal their need for care and present themselves as in-control. But, as Sally Gadow (1987) argues, this means presenting an inauthentic facade or mask that can obstruct a ‘true relation between [the] self and world’ in a way that actually reinforces a sense of isolation. If it is no longer possible to maintain this facade, an older adult may then choose to disassociate from others in order not to experience indignity. Gadow gives as an example the elderly person who, out of their own disgust at their vulnerable bodies, refuses to be in the company of others whilst eating. Their inability to present their body as in-control and self-possessed means that they feared being humiliated before others.

Families can also ignore the vulnerability of an older adult and decline to offer certain forms of care so as not to damage a sense of self-esteem that is attached to being independent. They may try to avoid shaming and patronising an older adult by declining to bring attention to vulnerability, or pretending that there has been no deterioration in functioning. However, as a study conducted by Motenko and Greenberg (1995) found, collective denial of vulnerability in late-life can ultimately be damaging to the family unit and, in some cases, result in neglect. In fact, it can deprive an older adult of those forms of support and relationships that are actually vital to maintaining a continued sense of competence and self-esteem.

Fourth, and finally, splitting society into those who are ‘strong’ and ‘capable’ actors, and those who are ‘weak’ and ‘helpless’ passive recipients, can support forms of intervention that are objectionably paternalistic. In such a society, the vulnerability of the liberal subject is denied, and the decision-making capacity of the independent autonomous subject is emphasised. In contrast, those who are deemed vulnerable are seen suffering from a deficiency that needs, as far as possible, to be remedied or overcome (Diduck 2013). The liberal subject is then in a superior position. He is capable of intervening into the lives of those deemed vulnerable to ‘make good the perceived lack’ (Shildrick 2002). This may be pursued without regard to the personal wishes and values of an older adult who is incapable of being an agent so long as vulnerability remains. Their life may be reduced to a set of objectively assessed risk factors. Focus may be on control, creating certainty, and the foregrounding of an age-related impairment, rather than meaningful engagement with the particular older adult. Such attitudes, some scholars have noted, are reflected in risk-averse practices relating to the care of dementia patients (Clarke et al 2010, Sabat et al 2011). Some of these sorts of concerns have also been directed at the way in which the vulnerable adult has been constructed in law (Dunn et al 2008).

The linking of oppression to the societal aim of suppressing the fear of vulnerability, and pursuing the comforting illusion of invulnerability, provides us with good reason to reassess the assumption that vulnerability is negative. Indeed, as long as vulnerability is conceptualised as a defect, which is intrinsically linked to old age, ageing will continue to be perceived as a mark of shame and diminished dignity. In this light, reconceiving vulnerability has the potential to unlock more constructive forms of engagement and complicate the possible range of responses to a fundamental feature of the human condition. Envisioning vulnerability as a potential site of flourishing, rather than just harm, means that it need no longer be reduced to an inherent defect in the human condition or something to fear. It might instead become something to be embraced and supported.

Reconceiving vulnerability: openness, affectability, and changeability

The possibility that vulnerability might have positive dimensions has been given limited attention in legal scholarship. It is only recently that scholars have begun to explore understandings of vulnerability that seek to move it beyond mere suffering and harm (Grear 2010, Grear 2013, Fineman, 2012, Bergoffen, 2011, Herring, 2016). These theorists have argued that vulnerability has positive dimensions and is a source of multiple forms of well-being. They have further suggested that vulnerability is generative of a range of basic goods and is an aspect of empathy, joy, desire, intimacy, social-connectedness, and creativity. But the precise manner in which vulnerability can give rise to these positive phenomena is not always clear or self-evident. In this section, I draw on the work of Anna Grear, Erinn Gilson, and Henk ten Have in order to explore how vulnerability can be a gate to flourishing.

The common thread that unites these scholars is the idea that vulnerability should be understood as a universal condition of openness to affectation and change in our connection to the world and others. They all draw on the phenomenological account of the lived body developed by Merleau-Ponty in order to re-theorise vulnerability as a condition of world-openness. Our bodies are, on this account, unique openings on to the world – a receptive interface with a world in which we are embedded, and from which we are incapable of being extracted. It is through our open bodies that we exist as a ‘living, sensory circuit with the world [that] form[s] the dynamic, living bond through which we co-relate with and in the world’ (Grear 2013). This is a world which we share with others, to whom we already connected, and with whom we are engaged and exposed. As such, our openness guarantees that we are always already in a dynamic inter-relationship with the world and others, which precedes our self-development. As openings on to the world, and as beings that are connected to others, we are also affectable – impressionable, perceiving, sensitive, yielding, feeling, and responsive. In this respect, we are capable of being shaped through our relationships to the world and others that can both sustain or diminish us, and can help or hinder flourishing. This affectability necessarily renders us dynamic beings. To be capable of being affected is to be exposed to the unchosen and unknown, and also susceptible to changes and transitions that one cannot fully predict or control.

There are four qualities that combine on this account to make us vulnerable – openness, affectability, alteration, and lack of full control. We are vulnerable because we are open to being affected in ways that bring about alterations that are incapable of being fully controlled or predicted. This represents a common or primary vulnerability that we all share, whether we are young or old. It is an aspect of the human condition that is not a limitation or debased condition, but a ‘condition of potential’ that enables the experience of positive forms of affectability. This means that vulnerability, as Gilson (2013) argues, is an ‘open-ended condition that makes possible learning, love, affection, and self-transformation just as much as it makes possible suffering and harm’. It is an enab...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Introduction
• PART 1: Care, vulnerability and age
• PART 2: Rights and state institutions
• PART 3: Relationships in old age
• Index