Parens Patriae in UK Law

Under English law charity has always received special treatment. It is therefore subject to special rules governing registration, administration, taxation and duration. Although not a state institution, a charity is subject to the constitutional protection of the Crown as parens patriae, acting through HM Attorney-General, to the state supervision of the Charity Commissioners and to the judicial supervision of this Court.

It is a function of the Crown as parens patriae to ensure the due administration of established charities and the proper application of funds devoted to charitable purposes. In every such case the Court would be acting upon the basis that the property affected is not in the beneficial ovmership of the persons or body in whom its legal ownership is vested but is devoted to charitable purposes, that is to say, is held upon charitable trusts.

Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange.

These include power to control education, the choice of religion, and the administration of the infant's property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the Courts to exercise the powers of the Crown as parens patriae.

It derives from the right and duty of the Crown as parens patriae to take care of those who are not able to take care of themselves. Even if there was no property and the child was not a ward of court, nevertheless the Court of Chancery had power to interfere for the protection of the infant by making whatever order might be appropriate. That was made clear by Lord Cottenham, Lord Chancellor, in Re Spencer (1847) 2 Phillips, page 247, where the infants were not wards and there was no property.

As I have said, the court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established jurisdiction in relation to children. There is little, if any, practical difference between the types of orders that can be made in exercise of the two jurisdictions.

That which is patrimonial is that which is inherited from the ancestral past. It therefore follows that whilst the decision in Re F signposted the inadvertent loss of the parens patriae jurisdiction in relation to incompetent adults, the alternative jurisdiction which it established, the declaratory decree, was to be exercised upon the same basis, namely that relief would be granted if the welfare of the patient required it and equally refused if the welfare of the patient did not.