In the case of R.P. and Others v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section
Registrar,
Having deliberated in private on 18 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 38245/08)
against the United Kingdom of Great Britain and Northern Ireland lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by four British nationals, R.P., A.P., M.P. and B.P. (“the applicants”), on 11 August 2008. The Judge decided that the
applicants’ names should not be disclosed (Rule 47 § 3 of the
Rules of Court).
The applicants, who had been granted legal aid, were represented by Ms R. Curling of Leigh Day & Co, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan of the Foreign and Commonwealth Office.
On 1 October 2008 the Vice-President of the
Fourth Section decided to give notice of the application to the Government. It
was also decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant (“R.P.”), the second applicant (“A.P.”), the third applicant (“M.P.”) and the fourth applicant (“B.P.”)
were born in 1985, 1982, 1950 and 1941 respectively. All four applicants are
British citizens who currently live in Nottingham, England.
A.P., M.P. and B.P. are, respectively, R.P.’s brother, mother and father.
On 7 May 2006 R.P.’s daughter (“K.P.”) was born
prematurely at 27 weeks’ gestation. The birth was unexpected as R.P. had
not known that she was pregnant. R.P. was not in a relationship with K.P.’s
father and he played no further part in the proceedings.
As a consequence of her premature birth, K.P. suffered from many serious medical conditions. She had serious chronic lung disease
(broncho-pulmonary dysplasia), which rendered her oxygen-dependent, she had bleeding on both sides of her brain (bilateral intraventricular haemorrhage), she was immuno-suppressed and therefore very susceptible to infection, and she had a
congenital heart defect which was repaired by surgery on 6 June 2006.
Although her health improved as she developed, she continued to require skilled
and labour-intensive day-to-day care. She was regarded as at high risk of cot
death and initially required feeding through a nasal-gastric tube.
It was observed that from K.P.’s birth until 22
August 2006 R.P. was only visiting K.P. for 1-2 hours a day. She had to be
prompted to visit for longer periods and it was noted that she could not complete
basic care tasks without prompting and support. A multi-agency meeting took
place on 22 August 2006, at which the hospital drew up a schedule of tasks
which R.P. would need to demonstrate she could satisfactorily complete before K.P.
could safely be discharged into her care. A “core assessment” prepared at this
time recorded that R.P. had previously been involved with the local authority’s
mental health services and was believed to have learning disabilities; that her
relationship with A.P., M.P. and B.P. fluctuated, with allegations having been
made of violence and aggression; that there were concerns about her
relationship with K.P.’s father; and that M.P. and B.P. were unsuitable to care
for K.P. because of poor household conditions and concerns about family
dynamics.
On 30 August 2006 a social worker met with R.P., M.P. and B.P. to discuss the local authority’s concerns as to the care of K.P. It was noted
that R.P. had difficulty understanding and articulating the nature and extent
of K.P.’s health needs and refused to accept that she needed help to care
properly for her. However, she did agree to participate in a Parenting
Assessment Manual (“PAM”) Assessment, which was a tool designed to assess
parents with learning disabilities. The assessment, which was completed on 1
September 2006, concluded that R.P. struggled to complete care tasks for R.P. and
demonstrated little understanding of her care needs.
On 8 September 2006 care proceedings were
commenced in relation to K.P. At this stage the aim of the care plan was to
identify how the local authority could keep K.P. alive and safe in a home
environment while R.P. was given the opportunity to develop her care skills. On
15 September 2006 an interim care order was made in favour of the local
authority and on 23 November 2006 K.P. was discharged from hospital into
the care of foster parents.
R.P. instructed a solicitor (“S.C.”) to
represent her in the care proceedings. Both S.C. and her very experienced
counsel developed serious concerns that R.P. was unable to understand the advice
she was being given. Pursuant to a court order, S.C. and the local authority
jointly instructed a consultant clinical psychologist (“H.J.”) to assess R.P. Prior
to being assessed, attendance notes from both the counsel and S.C. indicate
that they informed R.P. that the purpose of the assessment was to determine
whether or not she had capacity to provide instruction and, if she did not, the Official Solicitor would have to be appointed to act on her behalf.
In her report H.J. found that R.P. had a
significant learning disability and concluded:
“Because of the difficulties [RP] has in understanding, processing and recalling information, I believe that she will find it very difficult to
understand the advice given by her solicitor. She will not be able to make
informed decisions on the basis of this advice, particularly when this involved
anticipating possible outcomes. It would be appropriate for the Official
Solicitor to become involved.”
On 26 October 2006 S.C. wrote to the Official
Solicitor to advise him of the contents of H.J.’s report. On 31 October 2006
the Official Solicitor indicated that he would consent to act on behalf of R.P.
if invited to do so. On 7 November 2006 Nottingham County Court invited the
Official Solicitor to act for R.P. and he formally consented to act as her guardian
ad litem on 11 December 2006. In accordance with his usual practice, a case worker (“LM”) wrote to S.C. to confirm that she was to be instructed by the Official
Solicitor on behalf of R.P. She enclosed with the letter a further letter and
leaflet to be given to R.P. The letter stated that:
“You may already know that on 7 November 2006 the Official
Solicitor was asked to act as your guardian ad litem. This means that he
will instruct your solicitor for you. He can only do this if a doctor or the
court has decided that you cannot do so yourself. In your case, HJ completed a report dated 23 October 2006 which shows that you have a learning disability.
If your condition improves and HJ or another doctor says that you can manage on
your own, the Official Solicitor will of course step down and no longer act for
you.
Your solicitor will keep in touch with you, let you know what is happening and tell the Official Solicitor how you feel about things...
The Official Solicitor will consider the evidence of all the
people involved as well as your wishes and views before he files a statement at
court on your behalf. He will do his best to protect your interests but must, of course, bear in mind what is best for KP.
If you are not happy with the way in which your case is
conducted you should first discuss the matter with your solicitor or with me.
If you are still not satisfied you can write to the complaints officer...”
The content of the leaflet given to R.P. is set
out in full below:
“The Official
Solicitor
Who he is, and what he does.
WHO IS THE OFFICIAL
SOLICITOR?
Alistair Pitblado
is the Official Solicitor to the Supreme Court. It is his job to make decisions
on behalf of people who are unable to represent themselves in Civil and Family
Proceedings (the client).
WHY THE OFFICIAL
SOLICITOR ACTS IN A CASE
The Official
Solicitor agrees to act either because the client is under the age of 18, or because the client’s doctor does not think that they can cope with making decisions about
their court case. Legal matters can be difficult to understand and very
stressful and the Official Solicitor is here to protect the client’s interests.
HOW WILL THE OFFICIAL
SOLICITOR HELP?
The Official
Solicitor makes decisions about the court case such as whether to bring, defend or settle a claim. We will arrange legal representation in court for the client where
he considers this necessary. He will usually ask a firm of solicitors to help
him with the case. The Official Solicitor can only make decisions about the
questions arising in the court case. He cannot make any other decisions for the
client.
WHO CAN I SPEAK TO
ABOUT THIS CASE?
Your solicitor should
be the primary contact. The Official Solicitor has assistants who help him deal
with every case. These assistants are called case managers. The case manager
assigned to your case will provide you with details of the solicitors they have
appointed on your behalf.
WILL THE CLIENT BE
CONSULTED?
Shortly after he
agrees to act the Official Solicitor will usually instruct a firm of solicitors
as his solicitors, either the solicitors already instructed by the client or
new solicitors identified by the case manager. Such solicitors, or a senior solicitor within the firm, should be a member of the Law Society Children Panel or
the Resolution (formerly SFLA) Family Panel. The instructed solicitor will
communicate with the client and attend court hearings and will report on the
outcome to the case manager.
Fees and Charges
In the vast majority
of cases, the Official Solicitor acts in the capacity of Litigation/Next Friend
and instructs outside solicitors. The Official Solicitor does not make any
charge for acting in the capacity of Litigation/Next Friend. Where the legal
work in a case is conducted in-house, the Official Solicitor will, where appropriate, seek to recover his costs (or in medical cases there is a practice whereby
he is entitled to half his costs) using an hourly charging rate. We will write
to you separately with further details if this applies in your case.
COMPLAINTS
If you are
dissatisfied with the way your case is conducted you should first discuss the
matter either with the external solicitor, or with your case manager. If you
remain dissatisfied you may write to the Complaints Officer, Official Solicitor’s Office, 81 Chancery Lane WC2A 1DD.”
On 19 December 2006 Nottingham County Court
directed that H.J. be instructed to prepare a second report considering the
propriety of the teaching methods envisaged by the local authority in its
parenting assessment. H.J.’s second report, dated 2 March 2007, noted that the teaching methods and materials would “in general be appropriate” and emphasised
that simple language, direct instructions and repetition would be needed, along with immediate feedback.
On 2 March 2007 a parenting capacity assessment
was produced in respect of R.P. The report noted that R.P. had demonstrated
commitment to the assessment process and an ability to retain and carry out
basic tasks. However, social workers were concerned that R.P. had expressed
views of a racist nature, that she sometimes seemed immature and
attention-seeking, that she was overly preoccupied with her own health concerns, and that she spoke very negatively about the local authority’s professionals.
Reports from R.P.’s contact sessions with K.P.
indicated that R.P. showed some signs of improvement, demonstrating some
ability to remember what she had been shown and to repeat tasks. However, even after months of regular contact and support R.P. still, on occasion, needed reminding
about and prompting to perform basic tasks, especially when something
unexpected happened. They also indicated that R.P. occasionally demonstrated a
failure to put K.P.’s needs before her own and a lack of awareness of K.P.’s
current and future needs. Her attitude towards social workers was also noted to
be aggressive, uncooperative and occasionally violent. Consequently, there were concerns about R.P.’s ability and willingness to work with local authority
professionals and put K.P.’s needs first. This was of particular concern in
light of K.P.’s need for high levels of support.
In May 2007 H.J. was asked to produce a third
report. The report, dated 2 June 2007, primarily concerned the risks posed by R.P.
to K.P. and R.P.’s ability to care for K.P. H.J. was also asked to comment on R.P.’s
litigation capacity. She noted:
“1.1 As I have indicated previously RP has a significant
learning disability, and she will always need a high level of support in caring
for KP
. If she were not receiving this support she would pose a high
level of risk to KP’s well-being, which is not due to any desire on her part to
hurt KP, but to her limitations, which are too extensive to allow her to parent
KP successfully on her own.
1.2 If she were receiving a high level of support this risk
could be reduced. The level of support which would be needed for this to happen
would be for another competent adult to be present at all times, to prompt and assist RP in her care for KP. Essentially this means that RP would need to be
living with a partner or family member who could appropriately provide this
level of support.
... ... ...
2.3 Having read all the work which has been done with RP and
having carefully considered my assessment of her, it is my view that there is
no further work which could be undertaken with RP which would increase her
ability to care for KP in any significant way.
... ... ...
7.1 As I indicated earlier RP could only care for KP if she had
a high level of support. I cannot perceive anything in her circumstances which
suggests to me that such a support network is available, and without this no
progress can be made towards rehabilitation.
... ... ...
8.1 RP would need 24 hour support, and within this it would be
realistic to expect her to assist with KP’s care but not take sole
responsibility for this. This would continue to be the case throughout KP’s
childhood. If this could be achieved in a natural environment, such as a family, then it might be suitable as a long term prospect, as long as KP had a
consistent identified care giver within that arrangement.
... ... ...
9.1 RP does not have the capacity to give informed consent to a
placement order. She cannot really understand the proceedings except at a very
basic level.”
On 11 July 2007 the local authority completed a
further core assessment. The conclusion was that:
“The opinion of all the agencies involved with KP’s care in a
position to make an informed decision regarding RP’s ability to parent KP is
clear. Without a very high level of continuous support and supervision, RP does not have the skills to enable her to successfully parent KP. RP has consistently
demonstrated by her behaviour that she does not wish to work in partnership
with the agencies who will continue to be involved in KP’s care throughout her
childhood. Therefore, we need to look for alternative permanent carers.
Maternal grandparents have put themselves forward to be assessed and this is in
the process of being conducted. However, the local authority have a number of
concerns in respect of their living conditions, RP’s upbringing and the
influence that RP still has upon them and how this would impact upon KP if she
were to be placed in their care. Although the local authority do not wish to
pre-empt the outcome of the initial sessions with the maternal grandparents, there are a number of concerns regarding their interaction and relationship with RP and their
own parenting skills. The local authority at this time believe it is in KP’s
best interest to be placed for adoption and the matter will come before the
adoption panel on 19 July 2007. The local authority will urgently review this
if the outcome of the maternal grandparents’ assessment proves positive”.
The local authority filed its final care plan on
12 July 2007. That care plan recommended adoption outside the family and it
issued proceedings seeking a placement order under section 21 of the Children’s
Act 2002. The Official Solicitor consented to act on behalf of R.P. in the
placement proceedings as well as in the care proceedings. The application for a
placement order was then consolidated with the care proceedings and listed for
hearing before a judge.
On 6 August 2007 the local authority filed a
kinship assessment of M.P. and B.P. The report indicated that there had been
referrals to the local authority concerning M.P.’s and B.P.’s care of R.P. and
A.P. It further noted that M.P. and B.P. were unable to control R.P. or manage
her behaviour and that they had also intermittently displayed hostility and
suspicion towards the local authority. In view of these facts, the local authority concluded that it could not support the maternal grandparents as carers
for K.P. On 24 August 2007 a further kinship assessment was filed in
respect of A.P. The local authority considered that he was unlikely to have the
capacity fully to understand or to meet K.P.’s welfare needs and therefore
could not support him as a carer.
In a statement to the court dated 17 August 2007, the Official Solicitor indicated that R.P. was not in a position to consent or refuse her
consent to the placement order and as her litigation friend he was unable to
oppose the making of the care order or the placement order. However, he also indicated R.P.’s opposition to the orders sought by the local authority, her belief that K.P. should be returned to her care or the care of her family, and her belief that the local authority had not given her a chance to acquire the skills
necessary to care for K.P.
In a pre-hearing review R.P. agreed with S.C.
and counsel that she would not give oral evidence at the hearing but that her
wishes would be conveyed to the court by counsel.
The hearing took place on 29 August 2007. R.P.
was represented throughout by experienced counsel and her views were made known
to the court. At the conclusion of the hearing, the judge made a care order, dispensed with R.P.’s consent to the placement order and made a placement order.
R.P. applied for permission to appeal to the
Court of Appeal and also made an application in the County Court to revoke the
placement order. The County Court proceedings were adjourned pending the
outcome of the proceedings before the Court of Appeal, which took place in
March 2008.
The Official Solicitor was notified of the
appeal proceedings. He wrote to R.P., informing her of the possibility of free
legal representation through the Bar Pro Bono Unit (“the Unit”). When R.P. did
not pursue this, the Official Solicitor arranged for the Unit to consider her
case. Specialist counsel was appointed and made available to represent R.P. at
the hearing. Although R.P. declined his services, he attended the hearing in
case R.P. changed her mind. She did not change her mind and instead was assisted
in the proceedings by A.P. and Mr John Hemming MP, who acted as her McKenzie
friends.
In a statement to the Court of Appeal in
advance of the hearing, the Official Solicitor set out his standard working
practice. He indicated that:
“If there is a conflict in the evidence relating
to an adult party’s capacity to conduct the proceedings then I will not accept
appointment unless or until that conflict is resolved either by the experts
arriving at a consensus, or by determination of the court. I will return to
this issue below.
... ... ...
The solicitor, however, remains the primary
point of contact for the protected party. My case worker relies on the
solicitor to ensure the protected party is involved, so far as is possible, and is informed about the progression of the proceedings, and for communication of the
protected party’s ascertainable views, wishes and feelings with regard to the
matters at issue. Whilst the solicitor may not take instructions from the
protected party I regard the maintenance of personal contact between the
solicitor and the protected party during the case as important, to ensure that proper information is provided and to afford the protected party the opportunity
to express any concerns about issues raised, or information provided in the
proceedings. I expect any concerns raised to be properly considered and
communicated to my case worker. My case worker will consider the protected
party’s views and wishes on all relevant points but where those views and
wishes run contrary to the legal advice received as to the management and
progression of the case, it is unlikely that I will prefer the protected party’s
views over that advice, as it would not be in the protected party’s interests
that I do so.
... ... ...
I am not necessarily involved in the
investigation of capacity unless specifically directed to investigate by the
court (although my staff are available to offer guidance with regard to the
relevant test, if so requested). The evidence as to lack of litigation
capacity may therefore be in the form of a medical or psychological report or
by way of a report in the form of my standard certificate. The evidence is
generally from either a psychiatrist or (in the case of learning disability or
acquired brain injury) from a psychologist. In a small number of cases it will
be from a general practitioner. In a minority of cases it may be from another
clinical specialist such as a neurologist or geriatrician. In the alternative
the court may have made a determination, on the existing evidence, that the person concerned is a ‘protected party’ within the meaning of the rules.
If the evidence on capacity to conduct the
proceedings is ambiguous, or conflicting, then the Divisional Manager will
request further clarification from the person who has conducted the assessment, or refer back to the court for a determination of the capacity issue.
If during the course of the case the solicitor
advises the case worker that the protected party may have recovered capacity, the standard instructions provide that the solicitor must obtain further evidence on this
point.
If there is evidence that the protected party
has recovered capacity, then I will make an application to the court for my
discharge. It is of course always open to the protected party at any time
during my appointment to apply for my discharge, if of the view that the
evidence as to capacity is open to challenge. Similarly if a person comes
forward as willing to act in substitution for myself, then an application may
be made to substitute for me as litigation friend. My discharge or substitution
as litigation friend is for the court to decide.
If my case worker is informed that the protected
party asserts his or her own capacity to conduct the proceedings and disputes
the existing evidence, then the protected party would be invited to agree
to undergo further assessment - for example, through referral to his or her
general practitioner or other NHS referral. If the protected party refuses to
undergo further assessment or seek further evidence, I have, of course, no power to compel this.
At the hearing R.P. claimed that there had been
a violation of her rights under Article 6 § 1 of the Convention because, inter alia, she had not been informed that the Official Solicitor would be representing
her until after the hearing; the involvement of the Official Solicitor was
unlawful as she had the capacity to instruct her own solicitor; the clinical
psychologist had failed to apply the correct test in assessing capacity, namely the test identified in the Court of Appeal decision of Masterman-Lister (Masterman-Lister
v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister
v Jewell and another [2003] EWCA Civ 70); and finally, if she lacked
capacity, a family member should have been appointed as her litigation friend.
In a judgment dated 8 May 2008, the court found that R.P. was fully informed of the involvement of the Official Solicitor and
the nature of his role; the clinical psychologist correctly assessed R.P.’s
capacity by reference to the Masterman-Lister test, and R.P.’s family
members would not have been suitable litigation friends as they had also put themselves
forward as carers for K.P. With regard to the merits of R.P.’s case, the court found that the local authority had done what it could to facilitate the return of K.P.
to R.P.’s care and had not simply dismissed this possibility out of hand. The available
evidence indicated, however, that R.P.’s significant learning disability
prevented her from acquiring the necessary skills to provide K.P. with the care
that she needed and this was exacerbated by her increasing unwillingness to
co-operate with social workers. The court therefore concluded that the Official
Solicitor was right to concede that the care and placement orders were in K.P.’s
best interests and the judge was right to make the orders. Accordingly, it held that there had been no violation of R.P.’s rights under Article 6 § 1 of the
Convention.
R.P. applied for leave to appeal to the House of
Lords but leave was refused on 22 July 2008.
While the Court of Appeal proceedings were
ongoing, R.P. issued an application for leave to apply to revoke the contact
order. The application was refused on 7 August 2008 and on 22 October 2008
she was refused leave to appeal to the Court of Appeal.
On 19 August 2008 R.P. issued an application for
more frequent contact with K.P. On receiving notice of the application, the Official Solicitor wrote to the court to say that the question of R.P.’s capacity needed
to be decided in the context of the contact application. At a hearing on
27 January 2009, an expert report was produced which indicated that R.P.
had capacity in relation to the contact proceedings. However, on 15 May 2009 the application for contact orders was refused and R.P. was refused leave
to appeal. In addition, a further application for leave to revoke the placement
order was refused and the court ordered that in future R.P. could only apply
for leave to revoke the placement order if she could put forward a change of
circumstances since the date of the decision.
On 23 June 2009 R.P. applied for permission to
appeal the refusal to grant her leave to apply to revoke the placement order. Permission
was refused on 8 October 2009. On 24 June 2009 she issued an application for permission
to proceed with a claim for judicial review, pleading that the local authority
was acting unlawfully and unreasonably by proceeding with plans for the
adoption of K.P. whilst proceedings were pending before the European Court of
Human Rights. Permission was refused on 12 August 2009. On 7 December 2009
R.P. made a further claim for judicial review in respect of the adoption plan
but permission was refused on 14 January 2011.
R.P. subsequently made a further application for
leave to apply to discharge the placement order. On 10 February 2010 the
application for leave was refused and R.P. was refused permission to appeal. In
the context of those proceedings, the judge noted that “the mother has a
sufficient grasp of what she wants to achieve to put forward her case with
assistance so that imposing upon her a litigation friend would be quite
inappropriate”.
On 1 March 2010 K.P. was placed with prospective
adopters, who submitted an application for an adoption order in November 2010.
An adoption order was granted by the County Court on 14 April 2011 and R.P.’s
request for leave to appeal was refused by the High Court. R.P. has
subsequently lodged an application for leave to appeal to the Court of Appeal
out of time. That application was dismissed on 15 December 2011.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Section 31 of the Children Act
1989 provides for the making of care and supervision orders:
“(1) On the
application of any local authority or authorised person, the court may make an
order-
(a)
placing the child with respect to whom the application is made in the care of a
designated local authority; or
(b)
putting him under the supervision of a designated local authority or of a
probation officer.
(2) A court may only
make a care order or supervision order if it is satisfied-
(a)
that the child concerned is suffering, or is likely to suffer, significant harm; and
(b)
that the harm, or likelihood of harm, is attributable to-
(i)
the care given to the child, or likely to be given to him if the order were not
made, not being what it would be reasonable to expect a parent to give to him;
or
(ii)
the child’s being beyond parental control.”
. The Adoption
and Children Act 2002 provides for the making of placement orders:
“21 Placement Orders
(1) A placement order
is an order made by the court authorising a local authority to place a child
for adoption with any prospective adopters who may be chosen by the authority.
(2) The court may not
make a placement order in respect of a child unless-
(a)
the child is subject to a care order,
(b)
the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions
for making a care order) are met, or
(c)
the child has no parent or guardian.
(3) The court may only
make a placement order if, in the case of each parent or guardian of the child, the court is satisfied-
(a)
that the parent or guardian has consented to the child being placed for
adoption with any prospective adopters who may be chosen by the local authority
and has not withdrawn the consent, or
(b)
that the parent’s or guardian’s consent should be dispensed with.
... ... ...
52 Parental etc. consent
(1) The court cannot
dispense with the consent of any parent or guardian of a child to the child
being placed for adoption or to the making of an adoption order in respect of
the child unless the court is satisfied that-
(a)
the parent or guardian cannot be found or is incapable of giving consent, or
(b)
the welfare of the child requires the consent to be dispensed with.”
39. In England and Wales the Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and
willing to act. He is currently appointed by the Lord Chancellor under section
90 of the Supreme Court Act 1981.
The Official Solicitor generally becomes
involved in litigation because he is invited to do so. It is a matter for his
discretion whether he consents to act and he cannot be compelled to act. If he
consents to act, he may become involved in proceedings as a “litigation
friend”. However, the Practice Direction accompanying Part 7 of the Family
Procedure (Adoption) Rules 1991 (“FPR”) provides that the duty of a litigation
friend is:
“fairly and competently to conduct proceedings on behalf of the
non-subject child or protected party”
and that:
“... all steps and decisions he takes in the proceedings must
be taken for the benefit of the non-subject child or the protected party”.
Rule 21.1 defines a “protected party” as “a
party, or an intended party, who lacks capacity to conduct the proceedings”.
“Lacks capacity” is defined by reference to the Mental Capacity Act 2005:
“2 People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a
decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
... ... ...
3 Inability to make decisions
(1) For the purposes
of section 2, a person is unable to make a decision for himself if he is
unable-
(a)
to understand the information relevant to the decision,
(b)
to retain that information,
(c)
to use or weigh that information as part of the process of making the decision, or
(d)
to communicate his decision (whether by talking, using sign language or any
other means).
(2) A person is not to
be regarded as unable to understand the information relevant to a decision if
he is able to understand an explanation of it given to him in a way that is
appropriate to his circumstances (using simple language, visual aids or any
other means).
(3) The fact that a
person is able to retain the information relevant to a decision for a short
period only does not prevent him from being regarded as able to make the
decision.
(4) The information relevant
to a decision includes information about the reasonably foreseeable
consequences of-
(a)
deciding one way or another, or
(b)
failing to make the decision.”
. The leading
judgment on the issue of litigation capacity is that of the Court of Appeal in Masterman-Lister
v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister
v Jewell and another [2003] EWCA Civ 70. In his judgment, Chadwick LJ noted:
“The authorities are unanimous in support of two broad
propositions. First, that mental
capacity required by the law is capacity in relation to the transaction which
is to be effected. Second, that what is required is the capacity to understand
the nature of the transaction involved when it is explained.
... ... ...
For the purposes of CPR Part 21, the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other
disciplines as the case may require, the issues on which his consent or
decision is likely to be necessary in the course of those proceedings. If he
has capacity to understand that which he needs to understand in order to pursue
or defend a claim, I can see no reason why the law whether substantive or
procedure should require the imposition of a next friend or guardian ad litem
(or, as such person is now described in the Civil Procedure Rules, a litigation friend).
... ... ...
... a person should not be held unable to understand the
information relevant to a decision if he can understand an explanation of that
information in broad terms and simple language; and that he should not be
regarded as unable to make a rational decision merely because the decision
which he does in fact make is a decision which would not be made by a person of
ordinary prudence.”
III. INTERNATIONAL LAW AND PRACTICE
The United Nations Convention on the Rights of
Persons with Disabilities provides as follows:
“Article 1 - Purpose
The purpose of the present
Convention is to promote, protect and ensure the full and equal enjoyment of
all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
Persons with disabilities
include those who have long-term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder their full
and effective participation in society on an equal basis with others.
... ... ...
Article 5 - Equality and non-discrimination
1. States Parties recognize
that all persons are equal before and under the law and are entitled without
any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall
prohibit all discrimination on the basis of disability and guarantee to persons
with disabilities equal and effective legal protection against discrimination
on all grounds.
3. In order to promote
equality and eliminate discrimination, States Parties shall take all
appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to
accelerate or achieve de facto equality of persons with disabilities shall not
be considered discrimination under the terms of the present Convention.
... ... ...
Article 12 - Equal recognition before the law
1. States Parties reaffirm
that persons with disabilities have the right to recognition everywhere as
persons before the law.
2. States Parties shall
recognize that persons with disabilities enjoy legal capacity on an equal basis
with others in all aspects of life.
3. States Parties shall take
appropriate measures to provide access by persons with disabilities to the
support they may require in exercising their legal capacity.
4. States Parties shall
ensure that all measures that relate to the exercise of legal capacity provide
for appropriate and effective safeguards to prevent abuse in accordance with
international human rights law. Such safeguards shall ensure that measures
relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time
possible and are subject to regular review by a competent, independent and
impartial authority or judicial body. The safeguards shall be proportional to
the degree to which such measures affect the person’s rights and interests.
... ... ...
Article 13 - Access to justice
1. States Parties shall
ensure effective access to justice for persons with disabilities on an equal
basis with others, including through the provision of procedural and
age-appropriate accommodations, in order to facilitate their effective role as
direct and indirect participants, including as witnesses, in all legal
proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to
justice for persons with disabilities, States Parties shall promote appropriate
training for those working in the field of administration of justice, including police and prison staff.
... ... ...
Article 23 - Respect for home and the family
1. States Parties shall take
effective and appropriate measures to eliminate discrimination against persons
with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:
a) The right of all persons
with disabilities who are of marriageable age to marry and to found a family on
the basis of free and full consent of the intending spouses is recognized;
b) The rights of persons with
disabilities to decide freely and responsibly on the number and spacing of
their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable
them to exercise these rights are provided;
c) Persons with disabilities, including children, retain their fertility on an equal basis with others.
2. States Parties shall
ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar
institutions, where these concepts exist in national legislation; in all cases
the best interests of the child shall be paramount. States Parties shall render
appropriate assistance to persons with disabilities in the performance of their
child-rearing responsibilities.
3. States Parties shall
ensure that children with disabilities have equal rights with respect to family
life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall
undertake to provide early and comprehensive information, services and support
to children with disabilities and their families.
4. States Parties shall
ensure that a child shall not be separated from his or her parents against
their will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a
child be separated from parents on the basis of a disability of either the
child or one or both of the parents.
5. States Parties shall, where the immediate
family is unable to care for a child with disabilities, undertake every effort
to provide alternative care within the wider family, and failing that, within the community in a family setting.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The applicants complained that the appointment
of the Official Solicitor to act as R.P.’s litigation friend violated their
rights under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government contested that argument.
A. Admissibility
The Court notes that R.P.’s complaint under
Article 6 § 1 is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention, nor is it inadmissible on any other ground. Consequently, it must be declared admissible.
However, the Court observes that A.P., M.P. and B.P., who were K.P.’s uncle and maternal grandparents, did not have parental rights in respect of
her and, as a consequence, they were not parties to the care proceedings.
Therefore, although A.P., M.P. and B.P. played an active role in supporting R.P.
during the care proceedings, it could not be said that those proceedings
involved the determination of their civil rights and obligations (McMichael
v. the United Kingdom, 24 February 1995, § 77, Series A no. 307-B).
Consequently, the Court does not consider that A.P., M.P. or B.P. can claim to
be victims of a violation of Article 6 § 1 of the Convention. Although the
Government have not raised an objection on this ground, the Court notes that an
objection on the ground of victim status is an objection which goes to the
Court’s jurisdiction and, as such, the Court is not estopped from raising it of
its own motion (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III).
B. Merits
1. The first applicant’s submissions
R.P. submitted that Article 6 § 1 has been
violated because the decision on whether or nor she had litigation capacity was
not fully tested by a court and she did not have a full opportunity to
challenge that decision. In particular, she submitted that once S.C. received H.J.’s
report, she should have either advised her to seek separate legal advice or
advised her that she could challenge the report, and that public funding should
have been made available to enable her to pursue either of these options. In reality, however, no-one explained to R.P. the implications of the Official Solicitor being instructed
or that she could challenge H.J.’s findings as to her litigation capacity. Although
the Official Solicitor wrote her a letter, she was unlikely to have understood
the subtleties of it. The procedure adopted was therefore palpably inadequate
and the methods adopted were not appropriate to explain the critical issues to
someone in R.P.’s position.
Moreover, R.P. submitted that the procedural
defects in the assessment of litigation capacity were exacerbated by the dual
role of her solicitor. In particular, she argued that S.C. should not have
acted on behalf of the Official Solicitor while she was not agreeing with H.J.’s
views on her capacity and was not receiving separate legal advice. Finally, she submitted that there should have been a formal process by which the issue of litigation
capacity was regularly reviewed by the courts and she should have been advised
that she could ask the court to reconsider the issue.
Finally, R.P. submitted that there was an
inherent conflict in the role of the Official Solicitor, who appeared to have
assumed that his role was primarily to consider the best interests of K.P. As a
consequence, no-one was advocating on behalf of R.P., who was thus deprived of
an opportunity to advance her case before the domestic courts.
2. The Government’s submissions
The Government rejected the first applicant’s
suggestion that her litigation capacity should have been tested adversarially
in court. They submitted that as judges started from a presumption that a party
had capacity, and that presumption was only displaced after the court had
assessed the evidence carefully, even where a court was not asked to adjudicate
a contested issue of litigation capacity it would still require medical (and
possibly other) evidence before proceeding on the basis that a party lacked
such capacity. Thus, the approach of the courts ensured that capacity was not
removed without safeguards.
In any case, H.J.’s report had been clear on the
question of capacity and R.P. had been fully apprised of the report’s findings.
Nevertheless, the first indication she gave of wanting to challenge the
Official Solicitor’s appointment was on 27 August 2007, two days before the
final hearing and some ten months after his appointment. There was therefore no
reason why the court should have been expected to embark on an investigation of
capacity: the question had appeared to be uncontentious and to require such an
unnecessary formal process would have risked delaying the care proceedings and
damaging the welfare of the child.
The Government further submitted that S.C. had acted
entirely properly throughout the proceedings. It would have been unrealistic to
have expected S.C. to advise R.P. to seek either a second opinion or separate
legal advice as she had fully explained H.J.’s report to R.P., who had given no indication that she disagreed with the conclusions. However, even if S.C. had not acted entirely properly, the United Kingdom had done all that was
required of it to discharge its obligations to her under the Convention. First, they had in place detailed and comprehensive rules to regulate the conduct of private
solicitors (the “Solicitors’ Code of Conduct”); secondly, the Official
Solicitor issued comprehensive standard instructions to solicitors instructed
by him in care and placement proceedings, explicitly reminding them of the need
to keep the protected party informed and to keep in mind the issue of his or
her litigation capacity; and thirdly, they had in place a scheme of public
funding to obtain evidence in relation to litigation capacity and to fund
advice for, and representation of, parents in care and placement proceedings.
Therefore, the Government submitted that insofar as Article 6 § 1 imposed
positive obligations on the United Kingdom to secure R.P.’s rights, the United Kingdom had fulfilled those obligations. R.P. had, at the State’s expense, the solicitor of her choice who was regulated by a State-imposed professional code that
obliged her to act in R.P.’s best interests, to explain to R.P. the issues and
to keep R.P. up-to-date on the progress of her case.
The Government further submitted that a system
for automatic periodic review would be unnecessary and inappropriate in the
context of care and placement proceedings, where the child’s welfare was likely
to be harmed by any delay. It was also in the protected party’s best interests
to be able to raise the issue of capacity at any appropriate point.
While the Government agreed that the role of a
litigation friend was to act in the protected party’s best interests, they argued that when the protected party was a parent it was not sensible or realistic to
expect the Official Solicitor to ignore the welfare of the child as this was
the touchstone by which the courts would assess the case under domestic law.
Moreover, it would be artificial to draw an absolute distinction between the
welfare of the parent and that of the child where care and placement orders
were concerned as the welfare of the child constituted an element of the
welfare of the protected party. In addition, the Government noted that it was
open to any parent not represented by a litigation friend to concede that the
“threshold criteria” had been met or to agree to the local authority’s care
plan. It should therefore be open to the litigation friend to do the same, otherwise loss of litigation capacity would mean loss of the ability to concede a case where
an ordinary litigant would reasonably do so. Thus, it was not unreasonable of
the Official Solicitor, in deciding what was in R.P.’s best interests, to bear in mind the test that the court would be applying and not completely ignore the
welfare and interests of K.P.
In any case, the Government submitted that it
would not necessarily be open to a parent with litigation capacity to put
forward any case they wished. A responsible representative would advise the
parent on the merits and, if he or she chose to ignore that advice, the representative would be bound by the rules of professional conduct to withdraw and the
court would then most likely exercise its case management powers to limit the
presentation of irrelevant or unarguable matters.
The Government also stressed that the Official
Solicitor took all appropriate measures to ensure that the court was aware of
the wishes of R.P. However, it would have been inappropriate for him to have
advanced her position more vigorously, or to have argued that which was not
reasonably arguable. Acting in R.P.’s best interests did not entail advancing
whatever case R.P. wanted to advance, however unarguable.
Finally, the Government submitted that any
criticism of the use of jointly instructed experts was misplaced. As local
authorities in care and placement order proceedings did not have a vested
interest in persuading courts to find that parents lacked capacity, no conflict of interest could arise. Moreover, experts owed a duty to the court and not to the
party instructing them and in family proceedings they could only be instructed
with the permission of the court, which would first be informed of their
discipline, qualifications and expertise. In the present case S.C., R.P.’s own solicitor, selected H.J. and took primary responsibility for preparing her
instruction. Consequently, no criticism could be made of the parties’ and the
court’s decision to determine R.P.’s capacity by reference to H.J.’s reports.
3. The submissions of the Third Party intervener
The Equality and Human Rights Commission (“the
Commission”) submitted that learning-disabled parents in the United Kingdom were more likely to have their children removed from their care than other parents
and frequently did not receive the support which they needed in order to retain
custody of their children. Consequently, decisions about the removal of
children from learning-disabled parents required very close scrutiny of the
support offered to the parents.
The Commission further submitted that Articles 6, 8 or 14 could be breached if limitations were placed on a learning-disabled litigant’s right
of access to a court which were not strictly necessary, or if a litigation
friend did not take sufficient positive steps to ensure that the specific needs
and interests of such a parent were properly taken into account. In particular, it was important that strong procedural safeguards existed to ensure that the parent’s views
were properly, fully and fairly advanced before the court. In order for this to
be the case, it was essential that decisions about the parent’s litigation
capacity should not be taken on the basis of a joint report part-funded by an
opposing party in family litigation; that the question of capacity be kept open, with a formal institutional/legal mechanism for it to be challenged by the learning-disabled
person and reviewed if any evidence suggested it could be wrong or that the
position had changed; and that the case put forward by the Official Solicitor
or other litigation friend should be focused solely on the needs of the parent.
4. The Court’s assessment
The Court reiterates that the Convention is
intended to guarantee practical and effective rights. This is particularly so
of the right of access to a court in view of the prominent place held in a
democratic society by the right to a fair trial (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32 and Steel and Morris v. the United Kingdom, no.
68416/01, § 59, ECHR 2005-II).
Article 6 § 1 leaves to the State a free choice
of the means to be used in guaranteeing litigants the above rights. The
institution of a legal-aid scheme constitutes one of those means but there are
others, such as for example simplifying the applicable procedure (see Airey
v. Ireland, cited above, pp. 14-16, § 26; and McVicar v. the United Kingdom, no.
46311/99, § 50, ECHR 2002-III).
However, the Court recalls that the right of
access to the courts is not absolute but may be subject to limitations; these
are permitted by implication since the right of access "by its very nature
calls for regulation by the State, regulation which may vary in time and in
place according to the needs and resources of the community and of
individuals" (Golder v. the United Kingdom, 21 February 1975, § 19, quoting the "Belgian Linguistic" judgment of 23 July 1968, Series A no. 6, p. 32, para. 5). In laying down such regulation, the Contracting States enjoy
a certain margin of appreciation. Whilst the final decision as to observance of
the Convention’s requirements rests with the Court, it is no part of the Court’s
function to substitute for the assessment of the national authorities any other
assessment of what might be the best policy in this field (Ashingdane v. the United Kingdom, judgment of 28 May
1985, Series A no. 93, p. 24, para. 57).
Nonetheless, the limitations applied must not
restrict or reduce the access left to the individual in such a way or to such
an extent that the very essence of the right is impaired (see the
above-mentioned Golder and "Belgian Linguistic"
judgments, ibid., and also Winterwerp v. the Netherlands, 24 October 1979 , §§ 60 and 75, Series A no. 33). Furthermore, a limitation will not be
compatible with Article 6 § 1 if it does not pursue a legitimate aim and if
there is not a reasonable relationship of proportionality between the means
employed and the aim sought to be achieved.
In cases involving those with disabilities the
Court has permitted the domestic courts a certain margin of appreciation to
enable them to make the relevant procedural arrangements to secure the good
administration of justice and protect the health of the person concerned (see, for example, Shtukaturov v. Russia, no. 44009/05, § 68, 27 March 2008). This
is in keeping with the United Nations Convention on the Rights of Persons with
Disabilities, which requires States to provide appropriate accommodation to
facilitate the role of disabled persons in legal proceedings. However, the Court has held that such measures should not affect the very essence of an applicant’s
right to a fair trial as guaranteed by Article 6 § 1 of the Convention. In
assessing whether or not a particular measure was necessary, the Court will take into account all relevant factors, including the nature and complexity of
the issue before the domestic courts and what was at stake for the applicant
(see, for example, Shtukaturov v. Russia, cited above, § 68).
It is clear that in the present case the
proceedings were of the utmost importance to R.P., who stood to lose both
custody of and access to her only child. Moreover, while the issue at stake was
relatively straightforward - whether or not R.P. had the skills necessary to
enable her successfully to parent K.P. - the evidence which would have to be
considered before the issue could be addressed was not. In particular, the Court notes the significant quantity of expert reports, including expert medical and
psychiatric reports, parenting assessment reports, and reports from contact sessions
and observes the obvious difficulty an applicant with a learning disability
would have in understanding both the content of these reports and the implications
of the experts’ findings.
In light of the above, and bearing in mind the
requirement in the UN Convention that State parties provide appropriate
accommodation to facilitate disabled persons’ effective role in legal
proceedings, the Court considers that it was not only appropriate but also
necessary for the United Kingdom to take measures to ensure that R.P.’s best
interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to
protect R.P.’s interests might in itself have amounted to a violation of
Article 6 § 1 of the Convention (see, mutatis mutandis, T. v. the United Kingdom [GC], no. 24724/94, §§ 79 - 89, 16 December 1999).
It falls to the Court to consider whether the
appointment of the Official Solicitor in the present case was proportionate to
the legitimate aim pursued or whether it impaired the very essence of R.P.’s
right of access to a court. In making this assessment, the Court will bear in
mind the margin of appreciation afforded to Contracting States in making the
necessary procedural arrangements to protect persons who lack litigation
capacity (Shtukaturov v. Russia, cited above, § 68).
With regard to the appointment of the Official
Solicitor, the Court observes that he was only invited to act following the
commissioning of an expert report by a consultant clinical psychologist. In
assessing R.P., the psychologist applied the test set out in Masterman-Lister
v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister
v Jewell and another [2003] EWCA Civ 70, namely whether R.P. was capable of
understanding, with the assistance of such proper explanation from legal advisers
and experts in other disciplines as the case may require, the issues on which her
consent or decision was likely to be necessary in the course of the proceedings. She concluded that R.P. would find it very difficult to understand
the advice given by her solicitor and would not be able to make informed
decisions on the basis of that advice, particularly when it involved
anticipating possible outcomes. The psychologist produced two more reports in
the course of the proceedings, the second of which contained a further
assessment of R.P.’s litigation capacity. In that report she noted that R.P.
did not have the capacity to give informed consent to a placement order as she
could not really understand the proceedings, except at a very basic level. The
Court is satisfied that the decision to appoint the Official Solicitor was not
taken lightly. Rather, it was taken only after R.P. had been thoroughly
assessed by a consultant clinical psychologist and, while there was no formal
review procedure, in practice further assessments were made of R.P.’s litigation
capacity in the course of the proceedings.
The Court considers that in order to safeguard R.P.’s
rights under Article 6 § 1 of the Convention, it was imperative that a means
existed whereby it was possible for her to challenge the Official Solicitor’s
appointment or the continuing need for his services. In this regard, the Court observes that the letter and leaflet which the Official Solicitor sent to R.P.
informed her that if she was unhappy with the way her case was being conducted, she could speak to either S.C. or to the Official Solicitor, or she could contact a Complaint’s
Officer. Moreover, in his statement to the Court of Appeal the Official
Solicitor indicated that R.P. could have applied to the court at any time to
have him discharged. Alternatively, he indicated that if it had come to his
attention that R.P. was asserting capacity, then he would have invited her to
undergo further assessment. While the Court observes that these procedures fall
short of a formal right of appeal, in view of the finding that R.P. lacked
litigation capacity, it considers that they would have afforded her an appropriate
and effective means by which to challenge the appointment or the continued need
for the appointment of the Official Solicitor.
The Court does not consider that it would have
been appropriate for the domestic courts to have carried out periodic reviews
of R.P.’s litigation capacity, as such reviews would have caused unnecessary
delay and would therefore have been prejudicial to the welfare of K.P. In any
event, as noted above (see paragraph 69), assessments were in fact carried out
of R.P.’s litigation capacity in the course of the proceedings. The Court would
also reject R.P.’s assertion that she should have been encouraged to seek
separate legal advice at this juncture. In view of the fact that she had been
found to lack the capacity to instruct a solicitor the Court does not consider
that this would have been a necessary or even an effective means by which to
protect her interests.
As stated in paragraph 61 above, the Convention is intended to guarantee not rights that are theoretical or illusory but rights
that are practical and effective and this is particularly so of the right of
access to a court in view of the prominent place held in a democratic society
by the right to a fair trial (Airey v. Ireland, cited above, § 24). Consequently, any means of challenging the appointment of the Official Solicitor, however effective in theory, will only be effective in practice and thus satisfy the
requirements of Article 6 § 1 of the Convention if the fact of his appointment, the implications of his appointment, the existence of a means of challenging his appointment
and the procedure for exercising it are clearly explained to the protected
person in language appropriate to his or her level of understanding.
In this regard, the Court recalls that the
letter sent to R.P. indicated that the Official Solicitor would act as her guardian
ad litem and would instruct her solicitor for her. It further indicated
that S.C. would tell the Official Solicitor how R.P. felt about things and that
he would consider her wishes and views before he filed a statement on her
behalf. He would do his best to protect her interests but also had to bear in
mind what was best for K.P. The leaflet accompanying the letter informed R.P.
that the Official Solicitor made decisions about court cases, such as whether to bring, defend or settle a claim. Under the heading “Will the client be
consulted” R.P. was informed that “the instructed solicitor will communicate
with the client and attend court hearings and will report on the outcome to the
case manager”. If she was dissatisfied with the way her case was being
conducted, she was informed that she should discuss the matter either with S.C.
or the Official Solicitor’s Office. If she remained dissatisfied she could
write to the Complaint’s Officer. While the Court accepts that R.P. might not
have fully understood, on the basis of this information alone, that the Official Solicitor could consent to the making of a placement order regardless of her
own personal wishes, it cannot ignore the fact that she was at all times
represented by S.C. and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the
implications of his appointment. Indeed, in this regard the Court
recalls that S.C.’s conduct of the case was commended by the Court of Appeal
which found, in its judgment of 8 May 2008, that R.P. had been fully informed
of the involvement of the Official Solicitor and the nature of his role.
Nevertheless, she did not seek to complain until ten months after his
appointment and two days before the final hearing.
Consequently, the Court considers that adequate
safeguards were in place to ensure that the nature of the proceedings was fully
explained to the applicant and, had she sought to challenge the appointment of
the Official Solicitor, procedures were in place to enable her to do so (cf. Stanev
v. Bulgaria, [GC], no. 36760/06, 17 January 2012, where no direct access
to court was open to the applicant to have his status as a partially
incapacitated person reviewed by a court).
With regard to the role of the Official
Solicitor in the legal proceedings, the Court recalls that he was to act “for
the benefit of the protected party”. The Court has taken note of R.P.’s
concerns about his focus in the present case on “what was best for K.P.”.
However, the Court accepts that the best interests of K.P. were the touchstone
by which the domestic courts would assess the case. Thus, in determining
whether a case was arguable or not, it was necessary for the Official Solicitor
to consider what was in K.P.’s best interests. Consequently, the Court does not consider that the fact the Official Solicitor “bore in mind” what was best
for K.P. in deciding how to act amounted to a violation of R.P.’s rights under
Article 6 § 1 of the Convention.
Moreover, the Court does not consider that “acting
in R.P.’s best interests” required the Official Solicitor to advance any
argument R.P. wished. On the contrary, it would not have been in R.P.’s - or in
any party’s - best interests for the Official Solicitor to have delayed
proceedings by advancing an unarguable case. Nevertheless, in view of what was
at stake for R.P., the Court considers that in order to safeguard her rights
under Article 6 § 1 of the Convention, it was imperative that her views
regarding K.P.’s future be made known to the domestic court. It is clear that
this did, in fact, occur as R.P.’s views were referenced both by the Official
Solicitor in his statement to the court and by R.P.’s counsel at the hearing
itself.
Moreover, the Court recalls that R.P. was able
to appeal to the Court of Appeal. Although she was not legally represented in
the appeal proceedings, this was through choice as she refused the assistance
of pro bono counsel which the Official Solicitor had secured for
her. Nevertheless, the Court notes that in the course of the appeal proceedings
she was afforded ample opportunity to put her views before the court, and her arguments were fully addressed in the court’s judgment.
Consequently, the Court does not consider that
the very essence of R.P.’s right of access to a court was impaired. The Court
therefore finds that there has been no violation of her rights under Article 6
§ 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The first applicant complained of a violation of
Article 8 of the Convention as she did not have an opportunity to challenge the
decision to remove K.P. from her care. The first, second, third and fourth
applicants’ further complained that the removal of K.P. from R.P.’s care
violated their right to respect for their family life under Article 8 of the
Convention.
Article 8 of the Convention provides that:
“1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
The Court notes that the first applicant’s complaint
is linked to the one examined above and must therefore be declared admissible. However, having regard to the finding relating to Article 6 § 1 (see
paragraph 78, above), it considers that there is no need to examine the
complaint separately under Article 8 of the Convention.
Although the Court accepts that the removal of K.P.
from R.P.’s care interfered with the applicants’ right to respect for their
family life, it considers that the interference was both in accordance with the
law and in pursuit of a legitimate aim, namely the protection of K.P. from
harm. Moreover, in view of the overwhelming evidence indicating that none of
the applicants had the ability adequately to care for K.P., even with the support of the local authority, the Court accepts that the interference was
necessary to protect K.P. from harm.
. It
follows that this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3(a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The first applicant complained that Article 13
had been violated because she was unable to challenge the appointment of the
Official Solicitor.
The Court notes that the R.P. was found to be
lacking in capacity to be a party to the legal proceedings pursuant to the test
set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70.
Accordingly, it would not have been open to her to bring separate legal
proceedings to challenge the appointment of the Official Solicitor. In any event, the Court has accepted, in its findings under Article 6 § 1 of the
Convention, that it was at all times open to R.P. to seek the discharge of the
Official Solicitor, either through an application to the court or, perhaps more appropriately, through a complaint to the Official Solicitor’s Office (see
paragraph 70).
It follows that this
part of the application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3(a) and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION
The first
applicant complained under Article 14, read in conjunction with Articles 6 § 1
and 8 of the Convention, that she was denied the right to challenge the removal
of K.P. from her care on account of her disability.
Article 14 provides that:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court has accepted that it was necessary for
the Contracting State to take measures to protect litigants in R.P.’s situation
and that the Official Solicitor scheme was within the United Kingdom’s margin
of appreciation (see paragraph 67, above). Consequently, although the Court
accepts that the first applicant was treated differently from someone with
legal capacity, it finds that her situation was significantly different from
such a person and the difference in treatment was objectively and reasonably
justified (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV).
It follows that this
part of the application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the first applicant’s complaints
under Articles 6 § 1 of the Convention and her complaint under Article 8 of the
Convention that she did not have an opportunity to challenge the decision to
remove K.P. from her care admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of the
first applicant’s rights under Article 6 § 1 of the Convention;
3. Holds that there is no need to examine the
first applicant’s complaints under Article 8 of the Convention.
Done in English, and notified in writing on 9 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki
Registrar President
