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||Neutral Citation Number:  EWCA Civ 462
||Case No: B4/2007/2168
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HER HONOUR JUDGE BUTLER QC
29th August 2007
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE WALL
||- and -
||Nottingham City Council
| 1st Respondent
RP was a litigant in person together with AP and Mr John Hemming MP as McKenzie friends
Shona Rogers (instructed by City Council) for the 1st Respondent
Peter Jackson QC and Robin Barda (onstructed by the Official Solicitor) for the 2nd Respondent
Hearing date: 4th March 2008
HTML VERSION OF JUDGMENT
Crown Copyright ©
(see Official Solicitor's statement)
;  EWCA Civ 70;  1 WLR 1511 (hereinafter referred to as Masterman-Lister) (paragraphs 111 to 127).
Lord Justice Wall:
- In my judgment, this is an important case. I say that for three principal reasons. The first is that it gives this court, for the first time, the opportunity to examine the role of the Official Solicitor when giving his consent to act and when acting for a parent in proceedings under Part IV of the Children Act 1989 (the 1989 Act) when that parent is alleged to lack litigation capacity and is said to be a "protected party" within the meaning of the court rules. The second is that it provides the opportunity for this court both carefully to examine and to put into the public domain everything that happened in the case both during the care proceedings under Part IV of the 1989 Act and in the consequential proceedings for a placement order under section 21 of the Adoption and Children Act 2002 (the 2002 Act). Thirdly, since the Family Justice System is frequently criticised for its alleged secrecy - an allegation often combined with suggestions of corruption and malpractice - this case offers an opportunity to demonstrate just how ill-informed those criticisms can be.
- The consequence is that this will be a long judgment. I make no apology for that. However, to assist the reader who does not wish to read the whole document from beginning to end, I have divided the judgment into sections as follows: -
1. Introduction (paragraphs 1 to 4).
2. The issues raised in the appeal (paragraphs 5 to 31).
3. Events since my judgment on the application for permission to appeal was handed down on 30 January 2008 (paragraphs 32 to 36).
4. The appellant's argument that she did not know that she was being represented by the Official Solicitor (paragraphs 37 to 79).
5. Mr. Hemming's reply in relation to the entries in the file of the solicitor acting for the appellant (paragraphs 80 to 90).
6. The appointment of the Official Solicitor in this case and the part played in it by a consultant clinical psychologist HJ (paragraphs 91 to 110).
7. The case of Masterman-Lister v Brutton & Co (Nos 1 and 2); Masterman-Lister v Jewell and another  EWCA Civ 1889
8. Should a family member have been appointed as the appellant's litigation friend? (paragraphs 128 to 133).
9. The position of the Official Solicitor in this and other cases: the interrelationship between ECHR Article 6 and the involvement of the Official Solicitor as the litigation friend of a person who is said to lack the capacity to conduct proceedings (paragraphs 134 to 142).
10. The merits (paragraphs 143 to 163).
11. Postscript (paragraphs 164 to 168).
12. The local authority's request for guidance in relation to parents whom they think may lack the capacity to litigate (paragraphs 169 to 182).
13. Current good practice (paragraph 183).
14. Addendum (paragraphs 185 to 188).
As is customary in these cases, this judgment will be written anonymously in order to protect the anonymity of the child concerned and to prevent her from being identified. Thus the only location which will be specified, and the only people who will be named, are the following: (1) the judge and the court; (2) the local authority; and (3) counsel and their instructing solicitors appearing in this court, including Mr. John Hemming MP, who acted in this case as one of the mother's McKenzie friends, and whom we permitted to address the court on her behalf. Her other McKenzie friend was her brother, who bears the same surname as the mother and the child, and who will, accordingly, also remain anonymous. However, if, having read this judgment, the appellant wishes the anonymity we have provided her and the child to be removed, we will consider any such application, and the submissions made in relation to it by the other parties to the appeal.
15. The Official Solicitor's statement in the case with two annexes.
As it was clear that this case raised important issues, we granted permission to appeal at the outset of the hearing. Thus judgment, accordingly, addresses the issues raised on the appeal.
The issues raised in the appeal
I think I can do no better, in introducing the appeal, than to repeat (with some editorial amendments) parts of the judgment which I gave on 30 January 2008 ( EWCA Civ 15), after hearing the appellant's application for permission to appeal.
The appellant is RP, who was born on 2 February 1985. She is the mother of a female child, whom I will identify by the initials KP, and who was born on 7 May 2006. RP appeals against care and placement orders made by Her Honour Judge Butler QC sitting in the Nottingham County Court on 29 August 2007.
KP was born prematurely at approximately 27 weeks. The undisputed evidence is that RP was not aware that she was pregnant until she visited her general practitioner very shortly before the birth. After she was born, KP remained in hospital. As the judge stated and this does not appear to be in dispute - KP "has very many serious medical conditions with which to contend" and requires skilled day to day care and management.
KP's father does not play any part in the proceedings, or in the life of KP. He is, the evidence reveals, now aged 65 or 66, and is Afro-Caribbean in origin. He and RP do not appear to have any form of ongoing sexual relationship, and they do not appear to have cohabited at any stage. RP, it should be said, is white, and KP is thus of mixed heritage.
Care proceedings in relation to KP were instituted by the Nottingham City Council (the local authority) in September 2006, and on 23 November 2006, pursuant to an interim care order, KP was discharged from hospital into the care of foster parents, with whom she has remained. She has thus never been in the sole care of RP.
The judge's judgment, which is extremely short and set out in full at paragraph 145 below, refers to the fact that assessments had been undertaken by the local authority both in relation to RP herself, and in relation to various members of her family, including her parents and her brother, AP. None was, however, deemed to be capable of caring for KP.
In the care proceedings, the judge found that the threshold criteria under section 31 of the 1989 Act were satisfied, and she concluded that it would be in KP's best interests for a care order to be made in favour of the local authority. The local authority's final care plan was for adoption outside the family, although given the likely difficulties in finding adoptive parents for a child with KP's disabilities, the local authority envisaged that she would, for the time being, remain with her present foster carers. However, the local authority had also issued proceedings under the 2002 Act, seeking a placement order under section 21. The application for the placement order was consolidated with the care proceedings, and they were heard together by the judge.
RP was represented before the judge in both the care and the placement order proceedings by the Official Solicitor, who did not oppose the making of the care order, and accepted on RP's behalf that she was not capable of giving consent to the making of a placement order in relation to KP. The order of the court thus records (in this particular respect, in my judgment, inaccurately) that the care and placement orders were made by consent. However, it goes on to record (accurately) that RP's consent to the placement order was dispensed with under section 52(1)(a) of the 2002 Act, the court being satisfied that she was incapable of giving consent to the placement order.
RP appeals to this court on the ground that her rights under ECHR Article 6 have been breached, and that she did not have a fair trial. In her skeleton argument produced for the permission hearing before me, sitting as a single Lord Justice on 16 January 2008, RP, who was in person, wrote:-
I was not allowed to speak at the final hearing to refute any claims made against myself or to provide evidence to support my case, the case was very short and I was basically a spectator. I wanted to present a case & still wish to do so.
My legal representative was changed or 'ordered' to take instructions from an official solicitor (sic), this was based on a psychological report by (HJ). I wish to refute this report in any further granted case I also intend to get my own evaluation report done, as I didn't have an opportunity to refute the report before, as this very report crippled my case and this stopped me from defending myself or instructing my legal team to do so, which stopped me having a "fair trial" which is a human right as specified under Article 6 of the HRA (Human Rights Act).
Parties in the case gave misleading, exaggerated facts and lies in their reports knowingly, these reports were used as evidence & I did not get the chance to refuted (sic) these during the final hearing, and I wish to argue that point at any new hearing.
Social Services offered very little or not support in an effort to keep (KP) with her family & I intend to argue that point at any new hearing.
HJ is a consultant clinical psychologist. On 19 September 2006, the parties to the care proceedings were given permission by a district judge to disclose the case papers to HJ in order for her to prepare a report upon RP's competence to instruct her solicitor. According to the order, RP's solicitor was to act as the lead solicitor, and a joint letter of instruction was to be filed by 26 September. HJ's report was to be filed by 27 October 2006.
I have been refused access to paperwork by my solicitor, which also has hindered my defence.
HJ duly interviewed RP and reported on 23 October 2006. Her conclusion, expressed in paragraph 3.1 of her report, was in the following terms:-
On 7 November 2006, a district judge, in the care proceedings, directed that the documentation in the case be released to the Official Solicitor, and that the Official Solicitor be invited to act on behalf of RP. On the same occasion, the district judge gave the parties permission to seek a psychiatric report on RP from a consultant psychiatrist, Dr. O, with once again RP's solicitors taking the lead and a joint letter of instruction being filed. Dr. O responded by letter on 13 December 2006.
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 involves anticipating possible outcomes. It would be appropriate for the Official Solicitor to become involved.
The Official Solicitor filed his consent to act in the care proceedings on 6 December 2006, and on 19 December 2006, the district judge gave further directions in those proceedings. These related in particular to the proposed teaching methods to be implemented in the parenting assessment of RP. Amongst other directions however, the Official Solicitor was ordered to file his statement by 4.00pm on 4 May 2007. The care proceedings were then listed for final hearing on 30 May 2007, with a time estimate of three days.
On 24 April 2007, the final hearing fixed for 30 May 2007 was vacated, and an order made for consolidation of the care proceedings with the application for a placement order in relation to KP under the 2002 Act, which the local authority had by then made. The Official Solicitor was invited to act for RP in the placement order proceedings, and directed to file statements in both sets of proceedings by 15 August (the care proceedings) and 22 August (the placement proceedings). The consolidated cases were then listed for hearing on 29-31 August 2007.
The Official Solicitor's statement in both sets of proceedings is dated 17 August 2007. It sets out the steps he had taken in the proceedings. It records that he had continued to use the services of the solicitor originally instructed by RP and that the solicitor in question had spoken to and met RP on a number of occasions. He then records RP's beliefs; (1) that she would be able to provide appropriate care for KP; and (2) that she had developed the skills necessary to parent KP. He also records her belief that KP should be returned to her care, but that if she was not able to care for KP, that she would want KP to be cared for by family members. The Official Solicitor then goes on to state:
20. It is (RP's) position that she has shown a commitment to contact and that there is a close and loving bond between her and her daughter. If (RP) is unable to care for (KP), she would like to have continuing direct contact with her.
Having considered all the evidence, however, the Official Solicitor, in the exercise of what he described as his "duty to conduct this case on (RP's) behalf and in her best interests", concluded; (1) that the threshold criteria under section 31 of the 1989 Act were satisfied; (2) that he could not oppose a care order being made in relation to KP; (3) that RP was not in a position to consent or refuse her consent to the placement order; and (4) that he could not oppose the local authority's application for such an order.
21. (RP) has commented on the position taken by the other parties and feels that the local authority has not given her a chance to acquire the skills necessary to provide care to her daughter. (RP) feels that she should have the right to a family life and that if (KP) were to reside in her care, there would be no risk of significant harm.
In this court, RP's case, as advanced by her, by her brother and Mr. John Hemming MP as her two McKenzie friends, was that she had been unaware that she was being represented by the Official Solicitor until after the placement order had been made. A number of further arguments were advanced by her and on her behalf. As I recorded them in my 30 January 2008 judgment, they were as follows:-
1. The appointment of the Official Solicitor in the case was unlawful. RP throughout understood what the case was about, and in any event family members were available to represent RP.
2. The expert who had been appointed, notwithstanding her duty to the court, had wrongly and unlawfully failed properly to address the question of RP's capacity see Masterman-Lister. In so doing, the expert had given the appearance of bias.
3. The decision to make a placement order was plainly wrong, and had been made in breach of RP's Article 6 right to a fair trial. It should, accordingly, be quashed. Various organs had acted to prevent a mother having her voice heard.
4. RP accepted that the process of re-uniting her with KP would be gradual. However, RP had the mental capacity to conduct the proceedings, and should have been permitted to do so.
At the hearing of the appeal on 4 March 2008, Mr. Hemming accepted that I had accurately recorded and summarised the arguments advanced on RP's behalf, as set out in paragraph 21 above. I will, accordingly, examine them later in this judgment.
5. RP had asked about her ability to appeal against Judge Butler's order and had sought permission to appeal from the judge.
On 8 January 2008, the Official Solicitor wrote to this court a letter which was copied to RP. In it, the Official Solicitor made it clear that the application for permission to appeal was not being brought by him in his capacity as RP's litigation friend, and that he had only become aware of the application as a result of his continued involvement in the county court proceedings (as to which, see below).
Having set out a history of the proceedings, the Official Solicitor referred to an application made by RP in the Nottingham County Court pursuant to section 24(2)(a) of the 2002 Act for leave (the word used in the Act) to apply to revoke the placement order. That application had come before HH Judge Jenkins on 2 January 2008. He had directed that it be heard on 11 February 2008 with a time estimate of one and a half days. The issues which the court was to address on those dates, according to the Official Solicitor, were the following:-
1. RP's capacity to conduct the proceedings
2. If she is found to lack capacity, an application for AP to be appointed as litigation friend in place of the Official Solicitor
3. If she is found to have capacity, or her litigation friend chooses to continue with it, the application under section 24(2)(a) of the 2002 Act; and
In paragraph 6 of his order, Judge Jenkins directed that the order and what he described as "this purported application" be sent to this court before 16 January 2008, and, in paragraph 7, this court was invited to inform the Nottingham County Court of the outcome of RP's application for permission to appeal, so that the judge might consider any further directions that may be appropriate.
4. If leave is granted, the substantive application to revoke the placement order.
In a section of my judgment handed down on 30 January 2008 headed Discussion, I considered RP's case. It seemed to me that the questions she raised were important. In addition, she had made a number of serious allegations against various of the professionals engaged in the case. At that point, of course, neither the Official Solicitor nor the local authority had had the opportunity to address the points made by RP. Equally, I knew of no consideration by this court of the interrelationship between ECHR Article 6 and the involvement of the Official Solicitor as the litigation friend of a person who is said to lack the capacity to conduct proceedings.
I therefore came to the conclusion that RP's application provided a useful basis for this court to consider these questions, and I directed that her application for permission to appeal be listed on notice to the Official Solicitor and the local authority, with the appeal to follow if permission was granted. I made enquiries of this listing office, and discovered that the application and the appeal could be heard by the full court on 4 March 2008. That became the date fixed for the hearing.
In my judgment of 30 January 2008, I explained that I was proceeding in this way because the case involved the future care of a very small child, and was thus urgent. I also explained that where cases were listed in this way, it was not always possible to consult the convenience of counsel. I made it clear, however, that it would plainly be of material assistance if RP was able to obtain legal advice and representation prior to 4 March 2008. I pointed out in particular that, given the allegations which she made against her previous solicitor, it would be sensible if she could be advised about the need to waive privilege in relation to the communications which she had had with her solicitor. I also suggested that she should also take the opportunity to clarify whether or not she was seeking permission to appeal against the care order made by the judge.
I also invited the Official Solicitor to provide the court both with a statement of his practice in cases in which he is approached to act for an adult who lacks capacity generally, as well as of his actions in the instant case. I made it clear that the court would also welcome his submissions on the interrelationship between ECHR Article 6 and his representation of a litigant who lacks the capacity to conduct proceedings.
Given the date which had been allocated for the hearing, it was necessary for the hearing in the Nottingham County Court for 11 February to be vacated. However, I did not direct a stay of the placement order pending the hearing in this court. KP's difficulties made it highly unlikely that she could be placed before 4 March 2008, and, in all the circumstances of the case, I did not want the local authority to feel inhibited in its search for prospective adopters, even if the ultimate outcome was that the placement order was set aside.
On this basis, RP's application for permission to appeal was adjourned to be heard by the full court on 4 March 2008, with the appeal to follow if permission was granted. In addition, I directed that a copy of this judgment be forwarded to the Nottingham County Court for the attention of HH Judge Jenkins, so that he could consider the future conduct of the proceedings in his court.
Events since my judgment on RP's permission application was handed down on 30 January 2008
As my remarks in paragraph 28 above make clear, I had hoped that RP would have obtained the benefit of public funding for the appeal, and that she would be legally represented before us. Regrettably, in my view, she continued to appear in person, albeit with her two McKenzie friends.
My anxieties about RP's representation were shared by the Official Solicitor, who was naturally concerned about RP's status to mount the appeal. We were, however, told by leading counsel for the Official Solicitor that RP had been in contact with the Bar's Pro Bono Unit (the Unit); that the Unit had agreed to assist her, and that it had been able to give her advice. Indeed, as a matter of courtesy, junior counsel instructed by the Unit, Mr. Ian Bugg, was in court throughout the hearing. We are grateful to the Unit and to Mr. Bugg for their efforts on RP's behalf.
The question of advice to RP was highly material because the Official Solicitor, in response to my judgment of 30 January 2008, had produced a wealth of material. This comprised; (1) the statement of his practice, both before the commencement of the 2005 Act and since its implementation, including the advice which he had sought and obtained from leading counsel; (2) his own file dealing with RP's case; and (3) the file kept by the solicitor instructed by RP in the care and placement order proceedings, whom the Official Solicitor, in accordance with his normal practice, had retained to act on RP's behalf.
The solicitor's file, which occupied two ring binders, was, of course, highly material in the light of the argument advanced by RP that she had no knowledge of the fact that she was being represented by the Official Solicitor. Very properly, in my view, this particular file had not been disclosed to the local authority, given the privileged material it contained. Fortunately, Mr Hemming informed us during the course of argument that RP was willing as between herself and the Official Solicitor - to waive privilege in relation to it.
Neither the local authority nor the Official Solicitor took any point on RP's status to mount the appeal, and in these circumstances, I say no more about it.
RP's argument that she did not know that she was being represented by the Official Solicitor
Before I address the issues identified in the numbered sub-headings in paragraph 21 of this judgment, it seems to me essential to deal with RP's assertion, which I have also recorded in paragraph 21, and which was repeated before us, that she had been unaware that she was being represented by the Official Solicitor until after the placement order had been made.
In examining this argument, we had the advantage of access to the file maintained by the solicitor instructed by RP prior to the appointment of the Official Solicitor, who, as I have already indicated, was then retained throughout the care and placement order proceedings by the Official Solicitor, and who thus acted for RP throughout. The solicitor in question, who is described on her firm's notepaper as a "Trainee Solicitor", has the initials SC, and I will refer to her throughout by those initials.
It will, of course, be understood by lawyers that the communications between RP and SC were covered by legal professional privilege. In the overwhelming majority of cases, the court will not have and will not be entitled to have - access to this material. However, when a litigant such as RP makes allegations of misconduct against her solicitor, the only way the solicitor can defend herself is to invite the litigant to "waive" the privilege, so that the solicitor can give her account of what was said and done. This is what has happened in this case, although, as a court of review, we did not hear oral evidence either from either RP or SC.
In these unusual circumstances, what I propose to do is to cite extensively from the solicitor's file. As I have already made clear, this is not material which would normally be in the public domain, but in my judgment fairness to the solicitor in question requires the court to examine the record in order to give her side of the story. I also appreciate that this will be a lengthy process, but one which I believe to be necessary if one is fairly to judge the assertion made by RP that she did not know she was represented by the Official Solicitor.
The file reveals that SC was instructed by RP on 13 September 2006, approximately five days after the institution of the care proceedings in the Family Proceedings Court (FPC). SC promptly obtained public funding for RP, and instructed counsel to appear for her before the justices on 15 September 2006. Counsel who was instructed was called in 1979, was a Recorder and a family law specialist.
There are two important pieces of contemporary information relating to 15 September 2006. The first is a note made by counsel, which, in its material parts reads as follows:
There is also in SC's file her lengthy attendance note of the hearing on 15 September 2006. After listing the persons in attendance, SC goes on:-
Client currently under Dr P, Registrar QMC (Queen's Medical Centre) consultant Dr. O. We need a report on her capacity to instruct as struggles at times to comprehend e.g. when magistrate said she would "adopt" facts and reasons. Inability to sit still, concentrate. Does she understand the health issues, but chooses to ignore them? Or does she truly not understand the damage caused by prematurity 27 weeks? Is it bravado, defensive or is she having difficulties? I am confident she gave clear instructions to agree to (KP) going into foster care.
After a further reference in the attendance note to counsel indicating to SC that she did not feel RP would be able to give evidence and lacked the capacity to instruct solicitors, the attendance note continues with the following:-
Lengthy discussions taking place between counsel and RP throughout the morning. RP being extremely difficult to obtain instructions from and counsel raising on more than one occasion the issue of whether RP is competent to provide instructions within these proceedings.
RP then indicating that she was agreeable to an interim care order being made by the court. This leaving counsel in a very difficult position as counsel was uncomfortable putting forward RP's position due to the fact that it was not apparent that RP truly understood the implications of her instructions or indeed the proceedings. RP also changed her mind on a number of occasions throughout the morning and therefore counsel being quite concerned about putting forward RP's instructions in the court room as counsel was not entirely clear as to what RP's instructions were.
Counsel then spending further time with RP discussing the proceedings, RP then indicating that she is agreeable to an interim care order being made. Counsel then putting to RP that she will put forward this position in court. Counsel discussing with RP the issues that she has regarding RP's capacity to provide instructions and understand the proceedings. The role of the OS being explained to RP and the need for a psychologist report. RP indicating that she has previously been seen by Dr. O a clinical psychiatrist in the past. It being suggested that some information is required from Dr. O regarding RP's mental health.
SC appearing in the NFPC (Nottingham Family Proceedings Court) with RP and counsel. It being put to the court that RP is agreeable to KP being placed in foster care on a temporary basis whilst she learns the skills necessary to care for a very poorly baby. It being indicated to the court by counsel for RP that it may be difficult for RP to accept instructions and we may need a psychologist to comment on the best way for RP to learn skills and counsel also raising the issue of RP's capacity to provide instructions. It being suggested that we need a psychologist report urgently and the matter should be transferred to the county court due to the complexity of the matter.
Slightly later the following observations are recorded: -
Discussions then taking place outside the court regarding RP's capacity to provide instructions. It being suggested that HJ or JR could prepare a report on RP's competency and also Dr. O is to provide a medical report.
Once again, RP being informed that counsel had issues regarding her capacity to provide instructions. It being explained to RP that a report will need to be prepared upon RP to assess whether she has the capacity to provide instructions or whether the OS needs to be instructed.
The matter returning to court after further discussions and it being indicated that the court will adopt the facts and reasons drafted and an interim care order in relation to KP will be made. It being agreed that the matter will be transferred to the county court due to the complexity of the case and so that the question of RP's capacity to give instructions can be investigated.
RP leaving the court during the making of an interim care order as the court indicated that they would adopt the facts and reasons. RP believing that this meant that the court were willing to adopt KP and therefore RP being very upset and angry at the mention of the word adopt. It being explained to RP outside of the court room that adopt has been taken out of context. It is not the local authority's plan to adopt KP at this stage and it being explained fully to RP the context in which the word adopt was used. RP finding it very difficult to comprehend and throughout the morning RP being very fidgety, she lacked concentration and seen to fail to comprehend a number of issues discussed with her throughout the morning.
The references to the "OS" in these attendance notes are plainly references to the Official Solicitor.
Speaking for myself, I have no difficulty of any kind in accepting the accuracy of both counsel's and SC's attendance notes of the hearing on 15 September 2006. They are, however, only the first of numerous recorded occasions on which the question of RP's capacity to give instructions was discussed with her, and the latter is the first of a number of occasions on which both the need for the appointment, and the role, of the Official Solicitor were explained to RP.
There is, however, a further point which needs to be understood and emphasised. Both the relevant rules of court and the leading case of Masterman-Lister make it clear that once either counsel or SC had formed the view that RP might not be able to give them proper instructions, and might be a person under a disability, it was their professional duty to have the question resolved as quickly as possible. This point will become more apparent when I consider the case of Masterman-Lister later in this judgment (see in particular paragraphs 111 to 127 below). For present purposes, it is sufficient to state that in my judgment it would have been a serious breach of her professional and ethical code were SC to have continued to take instructions from a person whom she had reason to believe did not have the capacity to instruct her. She was, accordingly, duty bound to seek a professional opinion on RP's capacity to do so.
The next reference to RP's capacity to give instructions, and to the role of the Official Solicitor appear in an attendance note dated 19 September 2006, made when SC attended the Nottingham County Court on the application for the joint instruction of an expert to assess RP's capacity to give instructions. The note reads as follows:-
The directions being sought from the court were discussed with RP and then duly made with her agreement. There is then this passage:-
SC discussing with RP the issues surrounding her capacity to provide instructions. SC indicating that a psychologist will need to prepare a report upon RP to assess her ability to understand the proceedings and provide instructions. RP seeming to understand this and RP agreeing that she will meet with HJ. SC advising RP that she will need to meet with HJ at SC's office. RP confirming that she consents to a psychologist being appointed to prepare a report on her.
SC attending upon RP after the hearing and informing her of the directions. SC indicating that it is essential that she cooperates with HJ so that issue of RP's competence to provide instructions can be dealt with and a way forward decided. SC advising RP that if the report indicates that RP is not able to provide instructions to SC, SC advising RP that the Official Solicitor will then be appointed to act on behalf of RP. SC advising RP that if this takes place, then SC will take instructions from the OS and it will be the OS who will file a statement in the proceedings not RP. SC advising RP that she will continue to see RP however she will report back to the OS on all matters. SC believing that RP understood the situation. SC confirming that she will be in contact regarding an appointment with HJ in due course.
This is the second specific reference to the instruction and role of the Official Solicitor. Once again, I have no difficulty in accepting the accuracy of SC's attendance note. Apart from anything else, she was simply fulfilling her basic professional duty by informing RP of the position.
On 21 September 2006, SC wrote two lengthy letters to RP. One dealt exclusively with the consequences of RP being publicly funded. The other was a report on the two hearings on 15 and 19 September. The second letter reported the order made on 19 September in the following terms:-
1. Leave (permission) was granted to disclose the case papers to the psychologist (HJ) for the purpose of preparing a report upon your competence to instruct your solicitor.
2. A joint letter of instruction is to be filed with the court and sent to the psychologist by 26 September 2006
3. The psychologist is to file a report by 4.00pm on 27th October 2006.
On 22 September 2006, SC telephoned the Official Solicitor to enquire about receipt of the latter's questionnaire on mental capacity. The Official Solicitor's representative said that she would resend a copy to the firm's Email address.
I will be in touch with you shortly to arrange an appointment for you to meet (HJ) so that she may prepare the report. It is important that we cooperate with the doctor to ensure that the psychologist report is filed on time.
On 27 September 2006, the agreed letter of instructions was sent to HJ. I will deal with its terms when I deal with the attack on HJ's assessment. On 13 October 2006 there is an attendance note of a telephone conversation between SC and RP in which the former reminded the latter of the appointment to see HJ on 16 October. The note continues:-
The appointment with HJ took place on 16 October, albeit not without some difficulty. SC's attendance note states that she took the opportunity to explain to RP the purpose of HJ and to advise RP "to be as honest as possible".
Her wanting to know why she is seeing a doctor. Advising her that it is to check that she has the capacity to understand the proceedings. The client saying she had. Advising her however that the judge has ordered this and we simply need a certificate of capacity from the doctor confirming that she does understand what is going on.
HJ's first report is dated 23 October, and is set out in full at paragraph 109 below. SC read the report and noted its comments and recommendations on 25 October 2006. On 26 October, she wrote to the Official Solicitor advising him of the position, and on the same day she sent a copy of HJ's report to RP pointing out that HJ recommended that "the Official Solicitor become involved in the proceedings". She asked RP to make an appointment to come in and see her as soon as possible "so that we may go through the report together and so that I may explain the role of the Official Solicitor".
RP put in an unexpected appearance on 30 October, when SC made an appointment for RP to come in and see her on the following day so that they could go through HJ's report. It does not, however, appear that she did so.
On 31 October 2006, the Official Solicitor acknowledged receipt of the report from HJ and confirmed that on the basis of HJ's opinion he would consent to act for RP. He noted that the next hearing was on 7 November and that it was expected that he would be invited to act on that date.
On 3 November 2006 there was an advocates meeting at which it was agreed that the court should be asked to invite the Official Solicitor to act. On 6 November, SC, over the telephone, communicated to the client the directions which had been agreed, including the automatic renewal of the interim care orders. On 7 November 2006, SC wrote to RP giving her the outcome of the advocates meeting. On the second page of the letter, she wrote:-
In relation to the court proceedings, these were discussed at the advocates meeting. The problem that we now have is that (HJ) does not feel that you have the capacity to understand the proceedings and provide instructions to your solicitor. This means that we must seek a direction from the court that the Official Solicitor becomes involved. The Official Solicitor will want to have a say in how the proceedings are managed from now on. This means that we cannot make any further directions without the Official Solicitor having had sight of your file. It was therefore agreed at the advocates meeting that the following directions would be made in the absence of the parties: -
1. The documentation be released to the Official Solicitor and the Official Solicitor be invited to act on behalf of the first Respondent, that is you.
2. The parties have leave to seek their report from Dr O, psychiatrist, upon you.
3. I am to act as the lead solicitor and a joint letter of instruction is to be filed with the court by 14th November 2006.
4. The interim care order is this matter is to be renewed on an ongoing basis.
I discussed with you on 6th November 2006 the directions that we were seeking and you provided your consent to the renewal of the interim care order on an ongoing basis. An appointment was made for you to attend our office on Friday 10th November 2006 at 2.00pm. I look forward to meeting with you on this date so that we can discuss matters further.
Unfortunately, it does not appear that SC and RP met on 10 November, although they did meet on 24 November The next reference to RP and the role of the Official Solicitor occurs on 5 December 2006, when SC sends RP a copy of the order made on 7th November 2006. She says: -
You will see from the order that the Official Solicitor has been invited to act on your behalf. This means that all work that I carry out upon your file must go through the Official Solicitor. I confirm that I have provided the Official Solicitor with a copy of the court bundle and a letter of instruction. I will let you know as soon as I hear from them.
On 11 December 2006, the Official Solicitor wrote a four page letter to SC setting out his instructions. The letter is date stamped as having been received by SC's firm on 12 December. Enclosed with it was a letter from the Official Solicitor to RP, also dated 11 December 2006, which the Official Solicitor introduced to SC with the following words: -
The letter from the Official Solicitor to RP is signed by the Official Solicitor's representative, LM. I propose to set it out in full:-
I enclose a copy of the Official Solicitor's client leaflet and a letter explaining the Official Solicitor's role for you to pass on to (RP). I also enclose a copy of the Official Solicitor's Standard Instructions which I refer you to. These set out our respective roles, evidence to be obtained and the conduct of cases in which the Official Solicitor represents a person under disability within family proceedings.
Court Proceedings relating to KP
You are involved in court proceedings in which Nottingham City Council seek a care order in respect of KP.
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 now 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. Your solicitor's contact details are as follows:
(name of firm) Solicitors
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.
Also enclosed with the letter was a two page leaflet explaining in simple language who the Official Solicitor is and what he does.
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 the complaints officer, Official Solicitor and Public Trustee, 81 Chancery Lane, London WC2A 1DD. Further information is available on the website: www.officialsolicitor.gov.uk.
In SC's file, there is a typed file note, dated 11 December 2006, which reads: -
The file kept by SC itself contains, as the first document in each of the two ring binders, a note giving the Official Solicitor's understanding that some of SC's typed attendance notes are not contemporaneous, but were typed up following the proceedings from contemporaneous notes included in the file. Speaking for myself, I have no doubt whatsoever that SC did indeed forward the Official Solicitor's letter of 11 December to RP, together with the explanatory leaflet. It is, however, equally plain to me that she is in error when she says, in the typed file note, that she did so on 11 December. She plainly did not receive the letters until 12 December (see the date stamp) and she could not, therefore, have sent RP the letter and the leaflet on 11 December. It is, therefore plain to me, as the Note in the file indicates, that the typed attendance note dated 11 December is either not contemporaneous; alternatively, on the basis that it was typed up from a contemporaneous note, SC has made a slip, and written 11 for 12 December.
SC sending to RP a copy of the letter from the OS which is addressed to RP. It being sent with a compliment slip. The letter enclosing the leaflet regarding the OS and who he is and what he does leaflet.
The file then moves into 2007. There is a great deal of activity on the file, which is relevant to SC's role in representing RP. I note simply in passing that SC sent RP both of HJ's further reports dealing (inter alia) with RP's mental capacity, and the last of which, dated 4 June 2007 states in terms that RP "does not have the capacity to give informed consent to a placement order" and that she "cannot really understand the proceedings except at a very basic level". In each case SC sought to arrange an appointment with RP to discuss the reports with her. HJ was in no doubt that RP continued to need the assistance of the Official Solicitor.
On 11 June 2007, SC moved firms, and on 7 June her new firm wrote to RP informing her of the move, and that SC would be taking RP's case with her.
As the local authority's applications moved towards the final hearing date, it became clear that its final plan for KP was to be stranger adoption. On 20 July, the local authority advised SC that it was assessing KP's maternal grandparents and RP's brother as potential carers for KP. It then became necessary for the Official Solicitor to file his statement(s) in the proceedings.
On 31 July 2007 there was a meeting between SC and RP at the former's offices. The purpose of the meeting was to go through the statement of the social worker and the guardian. Parts of the attendance note for this meeting are relevant to this part of the case, and are in the following terms:-
SC enquiring as to her position regarding KP being placed for adoption as this is what is being suggested by all those involved. RP indicating that she would not give her consent to the adoption of KP as she wishes to KP to be returned to her care. SC advising RP that as the Official Solicitor is instructed to act on behalf of RP, if RP will not sign the statement, it will be signed by the Official Solicitor who will make a decision based upon all the evidence before them.
SC indicating that the Official Solicitor will consider RP's position, however, the Official Solicitor will act in the child's best interest and will make a decision based upon the evidence presented to the court.
SC indicating to RP that she will make it very clear in the Official Solicitor's statement RP's position, however SC advising RP that the Official Solicitor may not take the same position as RP and may not suggest that KP be returned to her care.
SC obviously had considerable difficulty in obtaining RP's instructions on the two documents: indeed, she records RP refusing to comment on the social worker's statement.
On 1 August 2007, there was a meeting between SC, RP and the social worker. SC records that RP understood the local authority's plans for KP. SC informed RP that the Official Solicitor's statement, to be filed on RP's behalf, was in the process of being drafted. On 13 August 2007 SC sent relevant documents to the Official Solicitor, and on 15 August SC spoke to RP on the telephone about the Official Solicitor's statement. SC took the opportunity to repeat to RP that "as she is represented by the Official Solicitor due to the fact that she does not have the capacity to provide instructions, it is the Official Solicitor who will file a statement on behalf of RP". SC advised RP that part of the statement would consist of RP's position in relation to KP, and RP confirmed that she felt that she was able to provide appropriate care of KP and that KP should be returned immediately to her care.
In an attendance note dated 15 August 2007, SC recorded that the statement of the Official Solicitor was taking a long time to prepare as she wanted to include the relevant information from all the reports and also to ensure that RP's position was very clear within the statement.
On 17 August 2007, the Official Solicitor consented to act as litigation friend of RP in the placement order proceedings, and on the same day, the Official Solicitor sent his statement to SC for filing.
On 22 August 2007, the pre-hearing review took place at the Nottingham County Court. RP was present with counsel and with SC. I need to cite various extracts from SC's attendance note:-
SC having a very lengthy conference with Counsel and RP prior to the hearing. During this meeting, the statement of the Official Solicitor being considered with RP. It is also being explained to RP very thoroughly the role of the Official Solicitor within the proceedings. The original report prepared by HJ was considered once again with RP and the reasons behind the report being directed by the court.
RP informing SC and Counsel that she feels that she was not adequately assessed and that it has been a set up from the start. Being explained to RP that HJ was a jointly instructed expert and therefore the assessment was fair. The outcome of the assessment being confirmed, it being confirmed to RP that HJ felt that RP did not have the capacity to instruct solicitors during proceedings and it was for this reason that the Official Solicitor was instructed to act on behalf of RP. It being confirmed that once the report has been received, the court directed that the Official Solicitor be instructed to represent RP.
The role of the Official Solicitor then being explained to RP and RP appearing to grasp the concept. RP also indicating that she understands that the Official Solicitor has been representing her to date by SC who takes instructions from the Official Solicitor.
RP very upset that the Official Solicitor is suggesting that the local authority's plans in relation to KP are correct and that KP should remain in care and be placed for adoption.
RP feeling that her voice is not being heard, SC explaining with Counsel the difficulty of the situation in that the Official Solicitor is instructed and it is the Official Solicitor who instructs SC on behalf of RP.
SC advising RP, however, that it will be made clear in court RP's position however ultimately the court is going to consider the position of the Official Solicitor who is instructed to represent RP.
The final paragraph of the attendance note reads as follows: -
During the meeting with Counsel, it was also discussed whether RP should give evidence at the Final Hearing. Being suggested that due to RP's inability to provide instructions to her solicitor, it would not be appropriate or a positive experience for RP to give evidence. RP being agreeable to this position and it being confirmed that Counsel will put forward RP's position in submissions. RP being satisfied with this way forward and understanding that she will not be providing oral evidence at the Final Hearing
In my judgment, this is a highly significant paragraph when one comes to consider RP's allegation that she was not permitted to present her case, or to be heard.
On 24 August 2007, SC attempted to make contact with RP. The former's note reads:-
SC attempting to contact RP regarding the Pre-Trial Review which took place on 22 August 2007. SC wanting to check that RP fully understood the discussion with Counsel and be prepared for the Final Hearing. RP being very aggressive during the call and unwilling to discuss matters with SC. RP continuing to indicate that she did not feel that her voice was being heard and that nobody was fighting for her. SC explaining that the Official Solicitor is instructed to act on behalf of RP and therefore SC takes instructions from the Official Solicitor in light of RP's position.
On 27 August 2007, SC recorded: -
SC receiving telephone call from RP, RP once again being aggressive and asking if SC will fight for her in court at the final hearing.
SC advising RP once again that the Official Solicitor is instructed and therefore SC takes instructions from the Official Solicitor. SC advising RP however that as it was agreed at the Pre-Trial Review that the matter would be dealt with on submissions and not via oral evidence, SC will ensure that Counsel puts forward RP's position so that the Judge is fully aware.
Later the same day there is a further attendance note which reads: -
SC receiving a further call from RP regarding the proceedings. RP once again indicating that she wants SC to fight for her in court. SC once again explaining the role of the Official Solicitor to RP.
RP indicating that she feels that she has the capacity to provide instructions, SC indicating that there is a direction from the court ordering that the Official Solicitor be instructed and therefore RP is instructed by the Official Solicitor in the current proceedings.
SC advising RP that she does not always feel that RP fully understands the proceedings and RP becoming aggressive at this point and putting the phone down.
We then come to the hearing on 29 August 2007. SC has provided a very long attendance note, from which the following extracts seem to me relevant:-
RP being advised that in light of the evidence filed and the fact that it is the Official Solicitor's position that it is felt in KP's best interests that KP remain in care and be place for adoption, that it would be unlikely that the court would make any other order other than that suggested by the local authority.
RP becoming very upset at this point and crying. SC offering support and assistance to RP, SC advising RP that her position will be put before the court and SC confirming that a copy of the letter has also been before the court, however, SC advising RP that the Official Solicitor's statement is officially RP's evidence as the Official Solicitor is instructed to act on behalf of RP.
Counsel for RP then indicating that the Official Solicitor has filed a statement and has concluded in light of the evidence that the Official Solicitor is not in a position to openly oppose the making of a Care Order.
In relation a Placement Order, it being put to the court that mother is not able to give consent to the placement of her child and that Counsel has had a lengthy conference with mother this morning and it is her position that she would wish to care for the child.
On 13 September 2007, SC wrote to RP. It is a standard summary / debriefing letter. Although not strictly relevant to RP's state of mind at and before the final hearing, it is, nonetheless, informative. Relevant extracts are: -
You were advised by Counsel that as you had been assessed as 'not having the capacity to give instructions to your solicitor' the Official Solicitor was instructed to represent you. You were advised that it is the Official Solicitor's position that they do not feel able to contest the making of a Final Care Order or Placement Order in respect of KP. You were advised that the Court would consider the position of the Official Solicitor when making a final order.
It is the Official Solicitor's position that based on the evidence filed in the Care Proceedings regarding KP, they did not feel in a position to oppose the making of a Final Care Order or indeed the making of a Placement Order in respect of KP. It is very unlikely that the Official Solicitor would support an appeal.
Finally, on 17 September 2007, RP called in to SC's office. The latter's attendance note reads:-
SC reading the letter to RP to ensure she understood the outcome of the Final Hearing fully. SC being satisfied that RP understood the outcome of the hearing. However, RP indicating that she feels that she was inadequately represented and her case was not put forward in court. SC once again advising RP that as she was assessed as not having the capacity to instruct solicitors, the Official Solicitor was the person who put forward RP's position throughout the proceedings.
Mr. Hemming's reply in relation to the entries in SC's file
I have related the number of times RP was informed about the Official Solicitor and the Official Solicitor's role at such inordinate length for two reasons. The first is the obvious one namely that, in my judgment, it renders wholly untenable any suggestion that RP did not know that the Official Solicitor was acting on her behalf. The evidence is overwhelmingly to the contrary.
My second purpose, however, is to record Mr. Hemming's quite extraordinary reaction to SC's file. After Mr. Peter Jackson QC had taken us through the references to SC's discussions with RP about the role of the Official Solicitor (perhaps not, in fairness to Mr. Jackson, in quite the same degree of detail as I have done) we invited Mr. Hemming to reply on RP's behalf. I confess that, no doubt with considerable naivety, I had expected a recognition on his part that, whatever RP's perspective of the Official Solicitor and his role, the record made by SC would be respected, and that Mr. Hemming would acknowledge that, to some extent at least, RP's recollection had plainly failed her.
Not a bit of it. So astonished was I by Mr. Hemming's response that I asked the transcribers to make me a CD Rom of the exchanges which occurred, so that my note of them could be supplemented by the record. In a nutshell, Mr. Hemming's response was that the evidence contained in SC's file had been made up: in a word, fabricated.
Mr Hemming seized immediately on the discrepancy in the dates which I have identified in paragraph 64 above, and sought to argue from it that "there is some doubt as to some of the provenance of some of the documents in these files." I intervened to say: "I believe in calling a spade a spade. Do you think this is a put up job?" Mr Hemming replied: "I think this is a put up job and I have some experience in looking for evidence".
I then put to Mr. Hemming that he was suggesting that the solicitor had deliberately falsified the file. Mr. Hemming demurred, stating that somebody had put the file note (which I have set out at paragraph 63 above) "and some other associated documents in retrospect that is what I am alleging". Mr. Jackson then intervened to enquire if Mr. Hemming was alleging that the letter dated 11 December 2006 from the Official Solicitor to RP, which I have set out at paragraph 60 above was not sent to her. Mr. Hemming replied: "I would think that is the case. Normal practice is to stamp everything that is received in an office". The following exchange then occurred between Mr. Hemming and myself: -
Lord Justice Wall
Mr Hemming you are making very, very serious allegations.
I accept that.
Lord Justice Wall
We have got to consider them. You do appreciate your position. We have got to consider the allegations you are making and weigh them in the scales. You are making very serious allegations indeed about the professional integrity and competence of solicitors and the Official Solicitor, and I think you really need to think very carefully about it before you go on.
Well, I have made the allegation. It does need consideration. It is strange to me that the file notes throughout the rest of the file are in completely different format, and a solicitor who normally sends a copy letter out with letters received, merely as a file note saying a with compliment slip was sent out. I find that very strange. But that is enough said on that point and I would ask you to consider.
I would like to move on if that is acceptable.
Over the period during which this judgment has been reserved, I have, of course, carefully considered Mr Hemming's interventions in this part of the case, and I have re-read the files. Having done so, the feeling of incredulity which I experienced on 4 March has not diminished.
In my judgment, SC's files demonstrate overwhelmingly four clear facts. They are; (1) that RP was fully aware that SC had doubts about her ability to provide instructions; (2) that RP was fully aware that the Official Solicitor was being approached to act on her behalf; (3) that she was fully aware that the Official Solicitor had been appointed, and was representing her; and (4) that she was fully aware of his role in the proceedings. In short, RP's assertion that she did not know the Official Solicitor was acting for her is manifestly unsustainable.
Mr. Hemming's response on RP's behalf is that this cannot be so because the file has been interfered with. I have, of course, considered that response with care. It is a profoundly serious allegation. However, it is one for which, in my judgment, there is absolutely no evidence. The only query is the mistaken date on the typed attendance note.
I find it not only unacceptable but shocking, that a man in Mr Hemming's position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.
I can simply see no reason why the file should not be taken at face value as accurately reflecting what occurred. The file simply reflects and records the actions of a solicitor doing her best to represent a disadvantaged client. I can see absolutely no reason why SC should have made false entries on the file and no reason why she should not have forwarded the Official Solicitor's letter of 11 December and the explanatory leaflet to her client. I ask myself the very simple question: why should she behave in this manifestly unprofessional way? In the crude phrase: what was in it for her? The answer to the second question is, of course, nothing.
In my judgment, any suggestion that SC has interfered with the file can be rejected out of hand. There is no reason to take the file at anything other than face value. I therefore have no hesitation in rejecting RP's claims on this part of the case.
The appointment of the Official Solicitor and the part played in it by HJ
I now propose to address the five issues identified in paragraph 21 of this judgment. I can, I hope, do so more succinctly, although my criticisms of Mr Hemming in this context will be, if anything, more serious.
The first two issues, it seems to me, have to be taken together, although they have several facets. For ease of reference, I will repeat them.
1. The appointment of the Official Solicitor in the case was unlawful. RP throughout understood what the case was about, and in any event family members were available to represent RP.
I propose, in this instance, to begin with the allegations made by Mr Hemming, which represent, in my judgment, a wholesale and entirely unwarranted attack on the professional integrity of HJ for which, once again, there is no evidence whatsoever. In this context it is, I think, appropriate to refer to material which Mr Hemming has posted publicly on his website. This material contains direct references to RP's case, which he makes no attempt to anonymise. It was made available to us by the Official Solicitor and is, in my judgment, of direct relevance to the issues we have to decide.
2. The expert who had been appointed, notwithstanding her duty to the court, had wrongly and unlawfully failed properly to address the question of RP's capacity see Masterman-Lister. In so doing, the expert had given the appearance of bias.
The first document is, I think, self-explanatory, and needs no introduction:-
From: John Hemming MP November 8 2007
Subject: Justice for Families Campaign Report 17
Quite a few things have been happening recently. FL's case (I have redacted the name) has been highlighted as an example of the money made out of allegations of Munchausen's syndrome by Proxy. RP's case (Mr Hemming gives the name in full) where the local authority's expert stopped her from being able to instruct a solicitor and the Official Solicitor stepped in has also highlighted a further problem in the system.
It is worth me writing a bit more about RP's case (which appears in the press cuttings below). Between 1st January 2006 and 22nd October 2007 there were 340 cases like RP's where the Official Solicitor acted. The Official solicitor is someone (Alistair Pitblado is in charge of the organisation) who acts when people don't have the "mental capacity" to make decisions and in theory don't have anyone else to make decisions for them. What this means is that RP was not allowed to say "no" or contest the local authority.
It takes a few moments for this to sink in as to how evil this is. What it means is that the local authority's expert can say someone is incapable of instructing a solicitor so the adoption case goes through "on the nod". Yes it is that bad. There is an EDM about this.
The second document is likewise self-explanatory: -
John Hemming's Web Log John's
Sunday November 18 2007
Evidence Based Evidence moving away from witch finding
The link is to an article in the Sunday Times about the unreliability of expert evidence. There does seem to be little concern in the legal profession about the reliability of opinion offered in court.
That essentially is much like the witching courts where the witch finder says "she's a witch" and then the state dunks her. The similarity goes as far as the amounts of money made by various expert witch finders.
When you put that together with manufactured "evidence" and phoney letters in the Family Division where there is little if any accountability and you have a recipe for disaster.
Disaster is indeed what we have got.
I have written to the LCJ suggesting how we could act to improve the quality control on expert evidence. The difficulty of course is that many of the experts sincerely believe what they are saying is true. It just so happens to be false. The outcome for the expert is more money in the bank. The outcome for the other parties to the case is often massive damage to their quality of life (prison, removal of children etc).
If you doubt my arguments consider the case of RP who was incapable of instructing a solicitor. Who said this? An expert paid by the Local Authority.
This expert is subject to the voluntary regulations of the BPS and is not statutorily accountable. Without the parliamentary petition on this issue it could not have been discussed in public.
The third document is a Parliamentary petition which, Mr. Hemming asserts, permits him to identify RP and her family. I make no comment on that, although for the purposes of this judgment, I have retained RP's anonymity.
I rest my case.
SUPPLEMENT TO THE VOTES AND PROCEEDINGS
PETITION FROM THE P FAMILY
23rd October 2007
To the House of Commons
The Petition of the P Family
Declares that a recent case in the Family Court has highlighted an injustice in the current system. The daughter of RP has been put up for adoption because she is alleged, by Nottingham City Council, to be too ill for her mother to care for her. The Council assessed RP as 'not having the capacity to give instructions to your solicitor'. As a consequence the Official Solicitor was instructed to represent her. This case demonstrates that there is a conflict of interest under current legislation which works against the interests of parents. The Petitioners believe that judgements on an individual's competence should be made by a fully independent authority to ensure justice is both done and seen to be done.
The Petitioners therefore request that the House of Commons urges the Government to legislate to prevent courts from accepting the opinion of experts paid by the local authority as to the capacity of parties to give instructions to solicitors and further to investigate on how many occasions the Official Solicitor has been used by Local Authorities to progress the removal and adoption of a child from its birth family.
It is plain to me from these documents, that in addition to the allegations set out above, Mr. Hemming believes that HJ was in the pay of the local authority and thus was "the local authority's expert". For good measure, he asserts that the system is "evil" and that "there does seem to be little concern in the legal profession about the reliability of opinion offered in court.". The clear implication behind the "witch findings" items on the website set out at paragraph 95 above is that "experts" like HJ are in it for the money; that they are happy to "manufacture 'evidence'"; and that they are in receipt of "phoney" letters of instruction. The result, Mr Hemming asserts is a "disaster".
And the Petitioners remain, etc.
In my judgment, these comments are not only wrong and ill-informed; the simple fact remains that they have no foundation in the evidence presented either to the Nottingham County Court or to this court. That they are made publicly by Mr Hemming once again strikes me as an abuse of his position.
The first point to make, of course, (and I am conscious that I am repeating myself) is that once a legal adviser reasonably entertains a doubt about a client's capacity to give proper instructions, it is that adviser's professional duty to satisfy him or herself that the client either has or does not have the capacity to give instructions. In this case, as the extracts from SC's file already set out make clear, both SC and counsel instructed on behalf of RP reasonably entertained those doubts. There is no suggestion in the evidence that in this regard they were acting in bad faith, nor does Mr. Hemming suggest that they were.
The next step is, of course, for the legal adviser to take expert advice on whether or not the client has the capacity to give instructions. What happened in this case? As counsel advised on 15 September 2006, SC set out to obtain an expert report on her client's capacity to give instructions and to conduct the litigation.
The position in the Family Justice System is that there is a very strict code for experts and for the instruction of experts. Appendix C to the Protocol for Judicial Case Management in Public Law Children Act Cases  2 FLR 719 at 771 (now replaced by the Public Law Outline (the PLO) and the latest Practice Direction on Experts) set out that code in considerable detail. I give only some of the more obvious points. The duty which the expert owes is to the court, not to the party instructing the expert. The process is subject to judicial control. The expert cannot have a sight of the court papers without the permission of the judge, and the letter of instruction to the expert is a document which, like the expert's report, has to be disclosed. The Family Justice System has been in the forefront over the past 15 years in attempting to do away with partisan experts who present the point of view sought by the solicitor instructing them. Long gone are the days when a report would be written for one side or the other, and automatically reflect that side's case or what that side wanted to hear. The clear duty of experts is to provide objective and independent advice to the court based on their expertise, and irrespective of the source of their instructions.
In addition to the matters already listed, the onus is on the judge to ensure that the expert selected by one or more of the parties has the requisite qualifications to provide the advice which is sought. The expert will, invariably in my experience, provide a CV, setting out his or her qualifications and experience, and the expert will not be instructed unless the judge agrees that he or she has the requisite expertise to advise the court on the particular point in question.
In the instant case, SC selected HJ, whose reports appear on the notepaper of an organisation which specialises in the assessment of parents' needs, and which describes itself as providing "an independent psychological assessment service for parents with a learning disability". HJ gives her qualifications as follows:-
I qualified as a clinical psychologist in 1990, and since then I have specialised in working with adults with a learning disability. I have considerable experience, over many years, of working with parents with learning disabilities, particularly in relation to preparing assessments to identify their capabilities and support needs.
In 2000, I received a Doctorate in Clinical Psychology from the University of Leicester, for research into the assessment of the parental competence of mothers with a learning disability.
My qualifications are an Honours Degree in Psychology, a Masters Degree in Psychology, a Diploma in Clinical Psychology and a Doctorate in Clinical Psychology.
I have provided training about the assessment of parents with a learning disability on numerous occasions, including joint training with the NSPCC, and training for Children's Guardian in several localities. I have also contributed to the Guidance produced by the Department of Health to accompany the "Framework for the Assessment of Children in Need and their Families".
I am the author of a paper entitled "Promoting effective working with parents with learning disabilities" published in the Child Abuse Review in 2004.
Nobody has suggested - nor could it be suggested - that HJ was anything other than admirably qualified to make an assessment of RP's capacity to instruct her solicitor.
I am an Honorary Lecturer in Clinical Psychology at the University of Leicester.
HJ was jointly instructed. She was not instructed by the local authority, nor was she the local authority's expert. The order made by the court on 19 September 2006 reads as follows:-
This is an absolutely standard order, about which there is nothing either unusual or sinister. Joint instructions in these cases are commonplace: the equal sharing of the cost is not only commonplace, but the Legal Services Commission's way of ensuring that the cost does not fall solely on the publicly funded parent: see, for example, the decision of Bodey J in Sheffield City Council v V (LSC intervening)  EWHC 1861 (Fam)  1 FLR 279. The open nature of the letter of instruction is to ensure that one party does not seek to take advantage of the others by inappropriate questions. If there is disagreement over the terms of the letter, it is settled by the judge. Crucially, of course, at this point, everybody is agreed that the instruction of the expert is appropriate; but nobody knows what the expert will say.
Leave be granted to the parties (my emphasis) to disclose the case papers to the psychologist HJ for the purpose of preparing a report upon (RP's) competence to instruct her solicitor. (RP's) solicitor to act as lead solicitor and a joint letter of instruction to be filed with the court by 4.00 pm on 26 September 2006. The report to be filed by 4.00 pm on 27 October 2006. The costs of such report to be split in equal third shares between the parties and to be a proper charge on (RP's) public funding certificate.
So far, there can be absolutely no criticism of the process, or the selection of HJ. What were her instructions? She recites them at the outset of her first report: -
I was asked to see (RP) to complete a psychological assessment and in particular to address the following questions: -
1. Please assess whether (RP) has a learning disorder or learning difficulty, and the extent of the same
2. In your opinion is (RP) able to understand these court proceedings and provide instructions to her solicitors?
In my judgment, no possible criticism can be made of the questions asked, and no suggestion can be made that HJ lacked the expertise to answer them. I will return later (see paragraphs 128 to 133 below) to the question of somebody other than the Official Solicitor for example a family member - acting as RP's litigation friend.
3. In your opinion, is (RP) competent to make important decisions within these proceedings herself, or should the Official Solicitor be involved?
Given the criticisms which are made of HJ, I propose to set out the whole of her first report in full. It reads as follows: -
In order to complete the assessment I saw RP at her solicitor's office for an appointment lasting for two hours. She was forthcoming and cooperative through the appointment.
1. Please assess whether RP has a learning disorder or learning difficulty and the extent of the same.
(RP) told me that she attended a mainstream school, but often truanted from school because of being bullied. She said that she had left school without taking any exams and has no qualifications. She does not think of herself as someone with learning difficulties.
In order to assess her intellectual ability, I completed a Wechsler Adult Intelligence Scale Third Edition (WAIS-3) with her. This is a standardised measure which indicates overall level of functioning as well as any specific strengths and deficits the individual may have. RP's scores on the WAIS-3 showed that she has a significant learning disability. This is a global disability, affecting all aspects of her functioning. I examined her scores for evidence that her functioning might have been limited by poor school attendance. However, the distribution of scores across the subtests suggests that this would not account for her learning disability.
(RP's) verbal abilities, as measured by the WAIS-3 were at the 2nd percentile (2% of the population would be expected to score at this level or below). This includes the ability to understand and recall information presented verbally, and think conceptually to resolve problems. Her performance abilities were at the 1st percentile (1% of the population would be expected to score at this level or below). This includes the ability to solve practical problems using information presented visually or in concrete form.
This profile indicates that (RP) does not have the overall understanding and ability which her initial verbal presentation might lead one to expect. Information will need to be presented to her in simple terms, using concrete rather than abstract language wherever possible. She has an ability to repeat verbal material which is in advance of her ability to comprehend or make use of this information. This can give a misleading impression, especially as she is unlikely to say when she has not understood something.
Her poor organisational and sequencing abilities to make it hard for her to plan and execute practical tasks. Complex tasks will need to be broken down and demonstrated with repetition in a consistent way. Pictures and diagrams will not be of any particular assistance to her, as she will not find it easy to transfer learning from these into practical situations.
Because of the level of her difficulties RP will find it hard to generate new solutions to problems independently. This means that while she may learn appropriate skills when she is shown, she will find it hard to adapt these when there are changes in her situation.
2. In your opinion is RP able to understand these Court Proceedings and provide instructions to her solicitors?
I found that (RP) has a limited understanding of the Proceedings, and of her solicitor's role within these. She could not explain to me the stage the proceedings were at, and spoke in a confused way about what has happened so far, and what may happen next. Most importantly, she did not seem able to understand that solicitors are there to represent their clients, and perceived them as acting independently of their clients
(RP) has the ability to tell her solicitor what she wants in broad terms (for example that she would like KP to be discharged to her care), but beyond this she will struggle to understand the complexities of the choices she may have to make.
3. In your opinion is RP competent to make important decisions within these proceedings herself, or should the Official Solicitor be involved?
It also needs to be recalled, of course, that HJ was asked to advise on two further occasions in the proceedings. I will discuss those reports when I deal with the merits of RP's case.
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 involves anticipating possible outcomes. It would be appropriate for the Official Solicitor to become involved.
Before setting out the Official Solicitor's statement of his actions in the instant case, it is necessary to examine HJ's first report against the leading case of Masterman-Lister. The first criticism made of HJ is that she "wrongly and unlawfully failed properly to address the question of RP's capacity. The "appearance of bias" is added as a second criticism. In my judgment, neither is sustainable.
It was common ground in the proceedings before this court that Masterman-Lister is the leading case on the subject, and that the common law test of capacity which it identified and promulgated had been incorporated into the 2005 Act. It was also common ground that at the time HJ was advising on RP's capacity which was before the implementation of the 2005 Act the test of a person's capacity to conduct litigation was that set out by this court in Masterman-Lister .
In his skeleton argument for the Official Solicitor, Mr. Jackson took us carefully through the old common law test of capacity, and provided a wealth of citation from Masterman-Lister. I do not think it necessary to undertake the same exercise in such detail. It is, however, I think, necessary to set out some parts of the judgments in that case in order to see whether or not HJ followed the Masterman-Lister approach.
Masterman-Lister makes it clear that the rationale of the mental capacity rule is that the court is itself concerned not only to protect its own process but to provide protection to all parties. Thus a defendant is entitled to expect that he will not be required to defend proceedings brought by a person of unsound mind acting without a next friend; see paragraph 65 of the judgment of Chadwick LJ ( 1 WLR 1511 at 1536). Equally, it is clear that, every adult must be presumed to be competent until the contrary is proved, and the burden of proof rests upon those asserting incapacity: - see paragraph 17 of the judgment of Kennedy LJ ( 1 WLR 1511 at 1520).
It follows, that the question of litigation capacity is one of considerable importance. When a person is treated as a protected person (previously a patient), he or she is thereby deprived of civil rights, in particular his right to sue or defend in his or her own name. These are important rights, long cherished by English law and now safeguarded by ECHR. Thus the basic right of people to manage their property and affairs for themselves is one with which no lawyer and no court should rush to interfere: see paragraphs 17 and 27 of the judgment of Kennedy LJ ( 1 WLR 1511 at 1520 and 1523-4).
In addition, Masterman-Lister makes it clear that the question of capacity is issue-specific, that is to say the capacity required by the law is the capacity in relation to the transaction which is to be effected. When applied to different issues, the tests may yield different answers: - see paragraphs 58 and 74 of the judgment of Chadwick LJ ( 1 WLR 1511 at 1533-4 and 1538-9).
As to the test of capacity itself, this finds expression in paragraphs 58, 75 and 79 the judgment of Chadwick LJ ( 1 WLR 1511 at 1533, 1539 and 1540-1). At paragraph 58, Chadwick LJ begins his analysis of the authorities with this proposition:-
At paragraph 75, Chadwick LJ says: -
The authorities are unanimous in support of two broad propositions. First, that the 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).
And at paragraph 79, Chadwick LJ says: -
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.
At paragraph 26 of his judgment, ( 1 WLR 1511 at 1523), Kennedy LJ had said much the same: -
the mental abilities required include the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision.
The question for this court, accordingly, in relation to HJ is: very simple. Did she apply the test as laid down in Masterman-Lister? I have set out the entirety of her first report at paragraph 109 above. In my judgment, she plainly did. I do not think the question admits of much debate. HJ applied a well-known standardised measure, the Wechsler Adult Intelligence Scale Test, and reported that, on the basis of the test, RP had "a significant learning difficulty", which was global and affected "all aspects of her functioning". In relation to RP's verbal abilities, these were at the 2nd percentile (which HJ explains, for those not familiar with percentile charts). Her performance abilities were at the 1st percentile. Her understanding of the proceedings was, accordingly, limited, and in paragraph 3.1 of her report HJ explains that the difficulties RP has in "understanding, processing and recalling" information will render it very difficult for RP to understand advice. She will, moreover, be unable to make informed decisions on the basis of the advice she is given.
I simply do not understand how it can be argued in these circumstances that HJ "wrongly and unlawfully" failed properly to address the question of RP's capacity. It seems to me that she addressed the question properly, and that she did so in accordance with the guidance set out in Masterman-Lister. I have set out the material. I thus regard the proposition advanced on RP's behalf as unarguable.
Furthermore, I simply do not understand the allegation of bias. How did HJ demonstrate bias? She was asked her professional opinion in an open and clear way, and she gave it. I regret to say that I suspect that the allegation of bias is made because RP (or those advising her) do not like the conclusion which HJ reached. Once again, however, I have to ask myself the very simple question: why should HJ not do her job properly and conscientiously? As with SC, what was in it for her? If her professional opinion had been that RP had capacity, she would have said so. Her professional opinion was that RP did not. That was an opinion she was plainly entitled to reach on the material before her and the proper application of her expertise to it.
Even more unarguable indeed it is outrageous - is Mr Hemming's allegation that HJ was the paid expert of the local authority. She was nothing of the kind. Such an allegation is not only without any evidential foundation of any kind: it is plainly contradicted by the evidence.
Mr. Hemming's allegation that HJ is part of an "evil" system only warrants comment because it comes from a Member of Parliament, and thus from a person in a responsible public position whom one ought to be able to trust only to make serious accusations when they are based on evidence. I am astonished that somebody in Mr. Hemming's position should have seen fit to put such a disgraceful allegation into the public domain. I reject it unreservedly.
In my judgment, the evidence plainly contradicts the proposition that RP throughout understood what the case was about. That was not HJ's view, and that view did not change throughout the proceedings. I will deal with this point again later when I come to discuss RP's case on the facts.
In my judgment, the arguments advanced by Mr Hemming in this case are ill-informed and tendentious. They are contradicted by the evidence, and must be rejected. I think this most unfortunate. Nobody who works in the Family Justice System regards it as perfect: most of us see it as under-resourced and struggling to deal with the work loads thrust upon it. Constructive criticism, particularly from those in a position to bring about change, is to be welcomed. I am myself in no doubt that the system must change and adapt, and I have spoken many times in public in support of my belief that there needs to be greater transparency in order to combat the partial, tendentious and inaccurate criticisms made against the system. I therefore welcome the opportunity provided by this case to demonstrate that the system has operated properly, and that the criticisms made are unfounded.
Should a family member have been appointed RP's litigation friend
In my judgment, the answer to this question is plainly "no". I will also deal with the suitability to family members to represent RP when I examine her case on the facts. For present purposes, however, I can summarise my views by stating that in my judgment, none of the members of RP's family was in a position to act as her litigation friend.
This part of the argument, of course, proceeds on the basis that, contrary to RP's primary case, she lacked capacity and needed a litigation friend. The first and overriding duty of a litigation friend is to conduct the proceedings "fairly and competently". Making every allowance for the feelings of RP's parents and brother (the only persons put forward as being suitable) I do not think that any one of these three would have been able to act in this way. A litigation friend is a great deal more than the protected person's advocate. On the premise that RP required a litigation friend, a number of difficult decisions needed to be taken - and taken objectively. Having carefully read all the evidence in this case, I do not think that any of the family members involved were capable of undertaking this role, nor would the court have permitted them to do so.
There is, of course, no reason in most civil litigation why a lay person with appropriate legal advice should not be the litigation friend of the claimant. Obvious examples are personal injury or clinical negligence cases where a family member such as a spouse or a parent frequently so acts. But it is of the essence of such an appointment that the litigation friend has no conflict of interest with the protected party. In the instant case, there were clear conflicts. Both the maternal grandparents and AP put themselves forward to care for KP. Had those applications been pursued, each would have had to become involved in the proceedings, acting directly in opposition to RP's clear and consistent assertion that she was fully capable of caring for KP. A moment's thought makes it clear that no family member could advance RP's case whilst putting themselves forward as carers for KP in opposition to RP's wishes.
Furthermore, it seems to me obvious that RP's lack of capacity to give instructions was based on her fundamental learning difficulties. She plainly needed clear and objective professional advice, and advice, moreover that was capable of providing an objective assessment of the welfare of KP. With all respect to them, none of RP's family members was capable of undertaking that role.
In addition, although it is disputed by AP there are clear historical allegations of intra family violence, and clear evidence of hostility on the part of the family to social services. None of this augurs well for an objective presentation of RP's case.
I am therefore entirely satisfied that not only was the appointment of the Official Solicitor in this case lawful, but that it was the right indeed the only proper course.
The position of the Official Solicitor in this and other cases: The interrelationship between ECHR Article 6 and the involvement of the Official Solicitor as the litigation friend of a person who is said to lack the capacity to conduct proceedings.
In compliance with my judgment handed down on 30 January 2008, the Official Solicitor placed before this court a great deal of material relating to his position both in the instant case and generally. As this judgment is already very long, I do not propose to attempt a summary of that material. In my judgment, however, this is material which is important and which should be in the public domain. Accordingly, what I have done is to prepare an edited version of the Official Solicitor's statement prepared for this court, which I have attached to this judgment as a supplement. This document also exhibits the advice which the Official Solicitor had sought and obtained from leading counsel on his role as litigation friend for parents under the 2002 Act; it also deals with the merits of RP's case from the Official Solicitor's perspective.
It should come as no surprise to those with a proper knowledge and understanding of the Family Justice System, that the Official Solicitor has not only thought carefully about his role as a litigation friend under the 2002 Act, and its inter-relationship with ECHR Article 6, but has sought advice on it from leading counsel. I therefore turn to my examination of the application of ECHR to the present case against this background.
As is well known, Article 6(1) of ECHR provides that: "in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
Mr Jackson addressed this issue in his skeleton argument. His submissions were short and, in my judgment, uncontroversial. Certainly, Mr. Hemming addressed no argument to us on the point which contradicted that advanced by Mr. Jackson.
Mr. Jackson submitted that any restriction on the right to conduct proceedings must be prescribed by law, necessary and proportionate. The requirement that a person lacking capacity should have a litigation friend did not, of itself, breach Article 6. In support of this proposition, Mr. Jackson referred us, firstly, to the decision of the European Court of Human Rights (ECtHR) in Stewart-Brady v United Kingdom (1997) 24 EHRR CD38 at CD42. in which a libel claim by a murderer was struck out; and, secondly, to a textbook, Clayton & Tomlinson "The Law on Human Rights" at 11.22-11.23, where there was a reference to the appointment of a litigation friend and the procedure under the CPR. The absence of any comment by the authors, Mr. Jackson submitted, supported the proposition he had advanced.
Mr. Jackson further submitted that it was clearly established in the case law that the right of access to a court was not absolute, but rather was subject to regulation in the interests of all litigants. Nonetheless, the rule was that 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 was impaired. For this proposition, Mr. Jackson relied on the well known decision of the ECtHR in of Ashingdane v United Kingdom  7 EHRR 528 at paragraph 57.
In summary, Mr. Jackson submitted that Article 6 did not import a higher or different standard to that imposed under English domestic law.
Mr Jackson modestly did not refer us to his advice to the Official Solicitor, which was attached to the Official Solicitor's statement in this appeal, and is likewise part of the Supplement to this judgment. It suffices, I think, for me to say that I agree both with the submissions made by Mr. Jackson in his skeleton argument, and those expressed in the opinion for the Official Solicitor, which I see is dated 13 March 2007. It is equally plain to me that the Official Solicitor, when making his assessment in the instant case, was following Mr. Jackson's advice.
In these circumstances, it seems to me that any potential breach of Article 6 is an issue of fact, and falls to be determined by reference to individual cases. It therefore seems to me appropriate to examine the Article 6 argument in the context of the facts. I thus turn to examine RP's case on its merits.
It had initially been my intention to deal with the remaining questions set out in paragraph 21 of this judgment individually. It had also initially been my intention to go through each facet of the local authority's case, its assessments of RP and KP, the way she put her case, and then to analyse the facts in some detail. However, as this judgment (ignoring the Supplement) has already comfortably exceeded 100 paragraphs. I have come to the conclusion that the better course is to summarise the position by reference to the material available to the parties, including KP's guardian and, of course, the Official Solicitor.
I should make it clear that in reaching my conclusion on this aspect of the case, I have re-read all the material provided, including all the papers which were before the circuit judge.
I propose to start this process at the end, by reciting the judgment given by the judge. As I stated in paragraph 10 above, it is short. It reads as follows: -
(RP) is now 22, is the mother of (KP), (KP) who was born prematurely on the 7th May of 2006 and really has very many serious medical conditions with which to contend. She is now one year and four months.
It is quite clear from all of the papers and all of the experts and, indeed, from mother herself, that she dearly loves (KP) and would wish to be able to look after her indeed as would any mother but, sadly, a number of professional psychologists and other people have felt that she is unable to do so and would put (KP) at risk and that is through no fault of her own. The Official Solicitor has accepted this conclusion on the mother's behalf.
Assessments have been done of her family, of her parents, of her brother, (RP), and it is felt that it would not be in the best interests of (KP) to live with them.
The threshold criteria are made out and I take the view that it would be in the best interests of (KP) to be made the subject of a care order and I make that care order.
The care plan is one for adoption. The Local Authority have covered within the care plan, some letterbox contact with (KP) by the mother and help will be given to mother in that regard but the Official Solicitor, who acts on behalf of mother, has accepted that the placement order will be made because mother is not capable of giving consent to the making of a placement order. As I understand it, prospective adopters have not been identified yet and the Local Authority have, in a sense, asked for a year to see whether they can place (KP) in a suitable placement and if not then, of course, the subject of contact will be under review but I feel, again, it would be in the best interests of (KP) if a placement order is made with a view to adoption and therefore I do dispense with mother's consent because she is incapable of giving it.
Although the judge refers to the case as being "very difficult" I have reached the very clear conclusion that the outcome was inevitable; that care and placement orders were the right indeed, the only course open to the judge in the interests of KP, and that RP's appeal to this court against the care and placement orders must be dismissed. I reach those conclusions for the reasons which I will endeavour to set out in the following paragraphs.
Yes, well, thank you all very much in this, obviously, very difficult case.
Before I do so, however, I wish to make one thing quite clear. RP was not, in my judgment, either treated badly or dismissed out of hand by the local authority as a carer for KP. To the contrary, I am satisfied that the local authority, in conformity with its statutory duty, both considered carefully and did what it could to facilitate KP being cared for by her mother.
That this is the case emerges clearly from the documentation. The first care plan is dated 6 September 2006. It states its aim at the outset:-
1.1. Aim of the plan and summary of timetable
Prior to the institution of proceedings in the Family Proceedings Court on 8 September 2006, KP had remained in hospital. The chronology maintained by the local authority demonstrated a number of worrying features, and amply justified the local authority's decision not to allow RP to take KP home. In the case synopsis prepared for the hearing in the FPC, the following was said: -
The aim of the plan is to identify how the local authority will keep KP alive and safe in a home environment whilst her birth mother is given the opportunity to develop her care skills. RP has been assessed as being unable to have sole care of KP.
Concerns related to RP's initial minimal visiting of KP (1-2 hours daily). She has, since a meeting on 16 August 2006 visited for longer periods, but the overall result is that she lacks practice and expertise in completing basic care tasks and the more complicated skills required to deal with KP's oxygen dependence. The hospital and social services have devised a list of requirements that RP needs to be able to demonstrate satisfactorily before KP can be discharged to her care. Whilst this has been discussed with her on three occasions, she had difficulty in understanding the seriousness of the situation.
These anxieties were reflected in the justices' decision to make an interim care order, and the reasons they gave for doing so. Nonetheless, it is clear to me that the local authority's care plan remained reunification of mother and child, provided RP could learn how to care properly for KP. This is confirmed by SC's initial brief to counsel which states: "It is our understanding that the local authority do want to continue to work with RP in the hope that one day KP may be returned her care."
RP is confident that she is able to care for KP upon discharge from hospital She is unable to articulate what KP's medical needs are or what has caused them. She has expressed the view that KP will only require oxygen for four weeks post discharge because when she "breathes fresh air" she will be OK. She does not comprehend KP's vulnerability and the fact that she may die if care is inadequate.
At the same time, SC recorded that the reason for the care proceedings was RP's refusal to agree to KP being accommodated, and it is significant that RP's belief that KP would be all right once she had breathed fresh air was also a comment recorded by SC, who also warned counsel that RP was "intending to bring her close family to court tomorrow. Her father has indicated that he will "punch" the social worker should (KP) be placed in care". This, in my judgment , is but one of the many instances demonstrating the unsuitability of any of RP's family members to act as her litigation friend.
The fact that the local authority intended to attempt to reunite mother and child is also, to my mind, demonstrated by the order made on 19 December 2006 by the district judge. He ordered that the local authority was to file a schedule of the proposed teaching methods to be implemented in the parenting assessment of RP. The local authority was also to provide details of the expertise of the assessors, and HJ was to file a report on the proposed teaching methods to be implemented.
On 29 November 2006, shortly after KP had been discharged from hospital to foster care, a local children's resource centre began an assessment of RP's capacity "to learn and consistently sustain the necessary child care skills to care for KP". RP remained of the view throughout that she did not need any help learning how to care for KP. One of the social workers dealing with the case recorded in her statement that RP had made numerous telephone calls to the office, complaining that her baby had been kidnapped. The same worker records: "Continuous accounts of her argumentative, verbally aggressive sometimes racist and threatening telephone calls and comments made during her assessment / observation sessions with KP are recorded within the assessment / observation records".
On 2 March 2007, HJ filed her second report on the training methods proposed by the local authority and RP's ability to understand and apply them. HJ's report, which contained no information after 22 December 2006 approved the working methods proposed. However, HJ entered a serious caveat in paragraph 2.2 of her report: -
We have in our papers the reports giving the outcome of the various assessments made in relation to RP. In particular, there are the following:-
RP's level of ability will limit what she is able to understand, even with simplified teaching methods and constant repetition. It would not be possible to simplify all aspects of KP's care to a level that RP can understand, retain and implement independently. She will always need a high level of support in caring for KP.
i) The report from the local Children's Resource Centre dated 2 March 2007;
The evidence from all these documents is overwhelming, and is all to the same effect. Whilst RP's love for her daughter is not doubted, her capacity to care for her independently is seriously deficient. HJ, who reported for a third time in June 2007, is particularly clear. The following extracts from that report give its flavour: -
ii) HJ's third assessment dated 4 June 2007
iii) A second report from the local Children's Resource Centre dated 8 June 2007;
iv) The local authority's core assessment report dated 11 July 2007;
v) The report of the children's guardian dated 26 July 2007
vi) The addendum reports from the local authority relating to their assessments of the maternal grandparents and AP and
vii) The report of the children's guardian in the placement order proceedings
1. Psychological risk assessment in respect of RP and whether in your opinion RP poses a risk to the physical and emotional well-being of KP. If you do consider that RP poses a risk, you are asked to indicate whether you deem this to be high, medium or low risk.
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 of 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. If RP poses a risk, what steps can be taken to reduce or minimise that risk, what work would you recommend is undertaken with RP and what are the timescales for the same.
2.1 In my previous report I was asked to comment on the suitability of the work being undertaken by the Local Authority to help RP acquire the skills she needs. As far as I am able to tell, the approach has been appropriate and RP has been given every opportunity to learn and demonstrate these skills
4. Please comment on whether in your opinion RP is able to provide appropriate and consistent care for KP should she be returned to RP's care now and in the long term.
4.1 As I have already indicated RP would need a high level of support in order to achieve this. On her own she could not provide appropriate and consistent care.
7. Do you feel that progress should now be made towards possible rehabilitation of KP to RP's care? If so, how would you suggest that would be best attempted, in terms of developing the contact already taking place? Upon this point in particular an early view would be appropriate.
7.1 As I indicated in my earlier report, 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. What support or assistance would RP need to maintain a good enough level of parenting? In the event of such support being put in place, could this be maintained in the long term?
8.1 RP would need 24 hour support and within this it would be realistic to expect her to assist with KP's care and 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. In your opinion is RP able to consent to a placement order? In your opinion is RP competent to make important decisions within placement proceedings herself or should the Official Solicitor continue to be involved?
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. She believes that the Judge will be given additional reports about her which she is not able to see, and that these will be "bad reports" no matter how well she has done in her assessment. She thinks that the Judge has already made his or her mind up, and that the Guardian is "not fair, if she was, I would get my daughter back". She believes her parents are not allowed to come to Court "in case they put in for her", which the Social Worker does not want.
In its report of 8 June 2007, the local Children's Resource Centre expressed its inability to be sure that RP would retain or understand information given to her at all times, and concluded:-
9.2 Furthermore she cannot see beyond the possibility that she might not get care of KP herself, to consider other placement options. For example, she could not discuss how adoption might differ from fostering because she sees all outcomes in which KP is not with her as wrong. In my view, she continues to need the assistance of the Official Solicitor.
This aspect of RP's behaviour is amply demonstrated in the attendance notes by SC, which I do not propose to rehearse. The local authority's core assessment report dated 11 July 2007, which is a very thorough piece of work, running to some 26 pages, reaches a similar conclusion:-
What has been consistent in terms of working with RP has been her negative attitude towards professionals especially social workers. The derogatory remarks and verbal threats have become progressively worse and I feel this is an indication that working cooperatively with RP will potentially be very difficult. I also have concerns as to how this will impact on KP.
The opinion of all of 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 with 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 concluded. However, the Local Authority have a number of concerns in respect of their own 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.
KP's guardian in the proceedings reached the same conclusion. In paragraphs 62 and 63 of her report. She writes:
Although the Local Authority do not want 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 the 19th July 2007. The Local Authority will urgently review this if the outcome of the maternal grandparents assessment proves positive.
62. Whilst I acknowledge the high level of commitment shown by (RP) to her daughter during these proceedings and am very clear that she loves (KP) dearly, the sad fact is that the evidence clearly leads to the conclusion that KP's needs cannot be safety met by RP or by any member of the family.
In my judgment, therefore, the evidence was overwhelmingly in favour of care and placement orders. It follows that the Official Solicitor, acting for RP, was right to concede that the threshold criteria under section 31 of the 1989 Act were satisfied (they self-evidently were) and that a care order was in KP's best interests. He was equally right to accept the advice of HJ that RP was not in a position to give an informed consent to a placement order. The judge was plainly right to make care and placement orders. Such were plainly in the interests of KP.
63. KP is a very young and especially vulnerable child who requires a high level of care in order to meet her potential. It is my view that the documentation supports the view that the only realistic way in which the welfare needs of KP can be met is by the making of a Care Order. I therefore support the application by the Local Authority for a Care Order to be made.
It follows, in my judgment, that RP's rights under ECHR Article 6 have not been breached. The orders made by Judge Butler were plainly right, and inevitable. RP's case was put before the court by the Official Solicitor, but, whilst it plainly represented RP's view, it was manifestly unrealistic. In short, KP's welfare required care and placement orders to be made.
It also follows that the Official Solicitor has, in my judgment, behaved entirely properly in the case. He was lawfully appointed, acted as a litigation friend should act, and could not properly have advanced an unarguable case on RP's behalf. He did what he properly could in the extracts from his statement which I set out at the beginning of this judgment. It was not for him to do more.
In my judgment, therefore, RP's appeal must be dismissed.
The only postscript I would wish to add to my substantive judgment on this point is that at the heart of this case, as with so many family cases, lies a human tragedy: the premature and unconsidered birth of a disabled child, and a mother who is plainly incapable of caring for her, however much she may want to. However, the danger of the mother's approach, reinforced as it has been, in my judgment, by Mr Hemming's partial and tendentious advice, is that it has been entirely adult focused. Not once in his argument did he mention the welfare of KP. His emphasis, and that of RP was entirely on her rights and the alleged wrongs which had been done to her.
The court's focus, of course, is on the child, and if one stands back from this case and asks oneself what it is the best interests of KP, the answer is self-evident. Of course, care proceedings and adoption are only to be contemplated when children cannot safely be cared for within their families. What Lord Templeman said in Re KD (A Minor) (Ward: Termination of Access)  AC 806, 812 about ECHR, local authorities and the rights of children to be brought up in their natural families is as valid today as it was when first spoken in 1988. The passage is very familiar to lawyers, but bears repetition. Lord Templeman was comparing the English common law and statute with ECHR Article 8 (the right to respect for private and family life). He said:-
This passage remains a bedrock of family jurisprudence, and I have no doubt that the local authority sought to apply in this case. RP and those advising her deceive themselves if they seek to blame the local authority for what has occurred. I am satisfied that the local authority did its best to reunite RP and KP: sadly, the former simply lacks the capacity to care properly for the latter.
The English rule was evolved against an historical background of conflict between parents over the upbringing of their children. The Convention rule was evolved against an historical background of claims by the state to control the private lives of individuals. Since the last war interference by public authorities with families for the protection of children has greatly increased in this country. In my opinion there is no inconsistency of principle or application between the English rule and the Convention rule. The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation. In terms of the English rule the court decides whether and to what extent the welfare of the child requires that the child shall be protected against harm caused by the parent, including harm which could be caused by the resumption of parental care after separation has broken the parental tie. In terms of the Convention rule the court decides whether and to what extent the child's health or morals require protection from the parent and whether and to what extent the family life of parent and child has been supplanted by some other relationship which has become the essential family life for the child.
Lest it be thought that this is a soft opinion, I would like to make it as clear as I can that the function of this court is to maintain standards in family justice, and does not hesitate to criticise a local authority which has broken the rules. Indeed, I invite any reader of this judgment to read the forthcoming decision of this court in Re F  EWCA Civ 439, which is being handed down on 1 May 2008, and in which Thorpe LJ, Wilson LJ and I are deeply critical of a local authority.
As to Mr. Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence.
The local authority's request for guidance
There is no doubt of the impact on care proceedings of the allegation that the parents of the children concerned suffer from learning difficulties or other disabilities. In the instant case, the local authority properly raises the question and seeks guidance on it. It puts the dilemma facing local authorities in the following way:
The local authority does however welcome the guidance of the Court as to whether further or other steps should in the future be taken to ensure the spirit of the 2005 Act and the Convention rights of the parent are properly respected during the course of care proceedings in which there is an issue as to that parent's capacity. In particular:
(1) Should further or other safeguards be put in place to ensure that a parent is properly informed and insofar as possible understands the appointment and role of the Official Solicitor and if so what is the responsibility of the local authority?
(2) Does the local authority have obligations to ensure the regular review of a parent's litigation capacity during the course of care proceedings at times when significant decisions are required to be made by that parent? If so, how is the local authority to achieve this without placing undue pressure upon the parent or intruding upon a proper solicitor-client relationship?
I propose to take the last of these questions first. The PLO contains a section entitled Pre-Proceedings, and identifies a "Pre-Proceedings Checklist" (PPC) of documents which are to be disclosed from the local authority's files, and attached to the application for the care or supervision order. Under the heading: "Any relevant Assessment Materials" are included "initial and core assessments". Under the heading "Other relevant Reports and Records" are included "Single, joint or inter-agency materials" of which health and education documents are examples. Also under this heading are included "Key local authority minutes and records for the child" and "Letters before Proceedings".
(3) Pursuant to the Public Law Outline (PLO) guide to Case Management in Public Law Proceedings (2008) the local authority is required, pre the issue of public law proceedings, to commission any specialist assessments needed following an initial social work assessment. At this stage, the provision of independent legal advice for the parent is limited. Is it appropriate for the local authority to invite an expert to consider the issue of litigation capacity at this stage?
Under the PLO, any invitation to the Official Solicitor to act for any protected persons is to be addressed on day 1, and the question of representation is to be identified by day 6, the date of the first appointment.
Paragraphs 10.2 and 10.3 of the Outline, under the headings "PPC" and "Compliance with PPC" identify the objective of the PPC as being to promote good case preparation, whilst recognising that the available documentation will vary from case to case. However, directions relating to the representation of any person who may be a protected party (including any necessary investigation and evidence to be obtained as to that person's capacity; and an invitation to the Official Solicitor to act where appropriate) should be given at the first appointment in the proceedings.
It is also to be noted that in the Glossary to the PLO, part of the Local Authority Case Summary includes "a summary of any concerns which the local authority may have about the mental capacity of an adult to care for the child or the capacity of the adult to prepare for the proceedings".
All this to my mind indicates strongly not only that the question of adult capacity to give instructions needs to be addressed at the earliest opportunity, but that the local authority will be expected, in the pre-proceedings phase of the case, to be on the alert for the possibility that a parent in particular may be a protected person and may not have the capacity to give instructions in the proceedings.
It is, I think, inevitable that in its pre-proceedings work with a child's family, the local authority will gain information about the capacity of the child's parents. The critical question is what it does with that information, particularly in a case where the social workers form the view that the parent in question may have learning difficulties.
At this point, in many cases, the local authority will be working with the child's parents in an attempt to keep the family together. In my judgment, the practical answer in these circumstances is likely to be that the parent in question should be referred to the local authority's adult learning disability team (or its equivalent) for help and advice. If that team thinks that further investigations are required, it can undertake them: it should, moreover, have the necessary contacts and resources to commission a report so that as soon as the pre-proceedings letter is written, and proceedings are issued, the legal advisers for the parent can be in a position, with public funding, to address the question of a litigation friend. It is, I think, important that judgments on capacity are not made by the social workers from the child protection team.
As to the first question, a litigation friend, whether the Official Solicitor or otherwise, cannot become involved unless and until proceedings are issued. Once proceedings are issued, the question of the parent's representation becomes and remains a matter for the parent's legal advisers. Prior to the institution of proceedings, the issue is a different one, and the local authority should feel free to offer whatever advice is appropriate, although, as I have already said, it seems to me that any advice given to the parent in question should come from the local authority's adult learning disability team.
The question of ensuring that a parent during proceedings is properly informed and understands the role of the litigation friend and, in particular the role of the Official Solicitor must be a matter for that parent's legal team, and for the Official Solicitor himself. During care proceedings, the likelihood is that the local authority (certainly in the shape of the child protection team) and the parent are likely to be in adversarial positions, and the child protection team would, I think, have a clear conflict of interest were it to seek to ensure that the parent in question fully understood the role of his or her litigation friend.
As to the second question, the answer is, I think, "no" except in those unusual cases where a parent becomes incapacitated and a social worker from the adult learning disabilities team becomes involved in order to support the parent.
I fully recognise that this is an area in which local authorities are in a difficult position, as they frequently stand in an adversarial position vis-a-vis parents, yet at the same time they have a duty to those parents to attempt, wherever possible to ensure that they can remain united with their children. On the facts thrown up by the instant case, I am satisfied that the local authority did its duty by facilitating and by not obstructing the instruction of HJ. More than this I do not think it was required to do, and even doing so much has brought upon it the unwarranted accusation of having somehow prevented RP from presenting her case by paying a biased expert to advise that RP was not competent to give instructions.
Once proceedings have been issued, therefore, local authorities must play the case as neutrally as possible. In the pre-proceedings phase, however, the local authority, in my view, is given the task by the PLO of acquiring information which is to be made available when proceedings are issued. In the pre-proceedings phase local authorities should feel free to do whatever is necessary in social work terms to assist parents who may become protected parties. My view, however, is that this is best achieved by members of the adult learning disabilities team who do not have responsibility for the children concerned.
These are, of course, preliminary thoughts in the early days of the PLO. This is, however, an area which the Family Procedure Rules Committee, which is drafting a new set of Family Procedure Rules will keep under review. A principal concern must be to ensure that where a litigation friend is necessary, the delay involved in the appointment of that person is kept to an absolute minimum.
Current good practice
On 1 October 2007 (after the making of the orders against which RP has appealed) the Mental Capacity Act 2005 came into effect. The Act, with its accompanying Code of Practice, statutorily defined capacity in a way that closely reflects the principles articulated in Masterman-Lister. The current law is summarised at paragraphs 46-53 of the Official Solicitor's statement, which is annexed to this judgment. That statement also contains a model form of certificate as to capacity to conduct proceedings, which usefully sets out the criteria that should be addressed by anyone giving an opinion on capacity.
Lord Justice Thorpe
Following normal practice, our judgments in this case were sent to the parties in advance of them being handed down so that the parties could correct any typographical mistakes or other obvious errors, and for a draft order to be agreed. As to the latter, RP and her brother took objection to a proposal by the local authority that their anonymity should be retained. They wished, they said, both for themselves and for their immediate family, to be named fully within the court order, so that the case could be publicly discussed.
We would not wish to inhibit such discussion, but remain concerned for the anonymity of KP. We do not, therefore, propose to alter the manner in which this judgment has been written. However, we wish to make it clear that both RP and AP are at liberty to identify themselves publicly as the mother and uncle of KP, and any other members of their family can, if they wish, identify themselves publicly by reference to their relationship with RP, KP and AP.
We do not propose otherwise to lift the anonymity which we have imposed, and in particular nothing must be published which would identify the location of KP, who must continue to be identified only by the initial K.
The order of the court will thus be that save as is provided in paragraph 186 above, and save for the references to the Nottingham City Council, Mr. John Hemming MP and the Official Solicitor, the names of all the parties to this appeal, including all professional witnesses associated with the proceedings and the child, shall remain anonymised.
STATEMENT OF THE OFFICIAL
SOLICITOR TO THE SUPREME COURT
I, ALASTAIR PITBLADO, the Official Solicitor to the Supreme Court, of 81 Chancery Lane, London WC2A 1DD, make this statement in advance of the hearing of this matter by the Court of Appeal on 4th March 2008. I believe the contents to be true and understand it will be placed before the court.
- As requested at paragraph 22 of the judgment of 30th January 2008 of Lord Justice Wall, I will describe (in Part One of this statement) my practice in cases where I act on behalf of an adult who lacks capacity and in Part Two give an account of my actions in the present case. I will make submissions through counsel on the relationship between ECHR Article 6 and my representation of a litigant who lacks the capacity to conduct proceedings.
The Official Solicitor then identified the documentation he had produced and acknowledged that much of it did not require to be read for the purposes of the appeal. It had been included because the Official Solicitor had taken the view that in the circumstances of the case, the court and RP should have access to the entirety of the material. The statement then continued:
The office of the Official Solicitor
- The state has always recognised the need for representation of an incapacitated person when an appropriate relative or friend cannot be found to act on his behalf. This function was undertaken on behalf of the Crown as parens patriae in various ways; the development of the office can be traced back through the 18th century.
- The office of Official Solicitor to the Supreme Court dates back to 1875. I am an officer of the Supreme Court appointed by the Lord Chancellor under section 90 of the Supreme Court Act 1981. I perform duties pursuant to statute, rules of court, direction of the Lord Chancellor, at common law, or in accordance with established practice. The function and purpose of my office is to act, whether in contentious or non-contentious matters, where, either because there is no other suitable person willing and able to act, or for some other reason, failure to do so would result in an injustice.
- A primary duty of my office is the representation of children who are not themselves the subject of proceedings, or adults who lack capacity to conduct proceedings, in County Court or High Court proceedings in England and Wales, and also in the family proceedings court in proceedings under the Adoption and Children Act 2002, and in proceedings in the Court of Protection, by acting as their next friend, guardian ad litem or litigation friend (all hereinafter referred to as 'litigation friend'). The adult is termed a 'protected party'.
- I may also be asked to provide an advocate to the court, or to act under a Harbin v Masterman direction to make enquiries and to report about such matters as the court thinks fit. I have a duty to review all committals to prison for contempt of court and to take such action as I consider necessary.
- I discharge a number of other functions including acting as last resort personal representative of the estate of a deceased person, or trustee of a trust. Additionally I have administrative responsibility for the Lord Chancellor's International Child Abduction and Contact Unit and for the Reciprocal Enforcement of Maintenance Orders (REMO) Section, and I am responsible for the management of the Child Trust Funds of children in England and Wales for whom there is no one (or no-one appropriate) with parental responsibility.
- I generally become involved in litigation because I am invited to do so either by the court or by some other party to the proceedings, although I can and do initiate proceedings on behalf of a non-subject child or protected party where some responsible person or body brings the facts to my attention and it appears that the person on whose behalf I am being invited to act has a good cause of action.
- It is a matter for my discretion whether or not I consent to act. I cannot be compelled to act. As a matter of long-established practice, therefore, my appointment by the court and any direction given to me by the court is expressed as being subject to my consent.
- I may, and on occasion do, act simultaneously or successively in one and the same matter in more than one capacity - for example I may become involved when invited by the court to provide an advocate to the court, but may then consent to act as litigation friend in the same proceedings.
- In civil proceedings I may be asked to act in a wide variety of cases. Such cases may involve representing the estate of a deceased person, usually in circumstances where a person wishes to claim against an estate for which no personal representative is willing to act. Many cases involve personal injury claims, possession actions, applications in connection with the ownership of property, and claims for appropriate provision from a deceased's estate. An increasing number of cases involve challenges to decisions of public authorities by way of Judicial Review, and claims on behalf of children for breach of statutory duty by local authorities; there has also been a considerable increase in my involvement in cases brought under the Mental Health Act 1983 where a local authority seeks to displace the nearest relative of a person suffering from mental illness.
- In family proceedings I can be asked to act as litigation friend for either a protected party or for a non-subject child. A child whose welfare is the subject of the proceedings will generally be represented by a children's guardian drawn from the Children and Family Court Advisory and Support Service (CAFCASS),
- In Court of Protection proceedings I can be asked to act as litigation friend of either the person whose medical treatment or welfare is in issue or of another adult party who lacks capacity to conduct proceedings.
- I acknowledge and accept that whilst a protected party is required by the rules of court to have a litigation friend, conversely, a person who has capacity to conduct the proceedings is entitled to instruct solicitors directly or to conduct litigation in person and it would be contrary to that person's rights of autonomy and to Article 6 ECHR to interpose a litigation friend upon such a person.
- 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 role of the Litigation Friend
- The rules of court provide that where a party (or intended party) is a 'protected party' he or she must have a litigation friend to conduct the proceedings on his or her behalf. When I act in this representative capacity I fulfill exactly the same role as any other person appointed to act in the same way. My position in litigation is no different to that of any other appointee.
- There is limited formal guidance with regard to the role of the litigation friend. The Practice Direction supplementing Part 7, section 1 of the Family Procedure (Adoption) Rules 2005 states that the duty of a litigation friend is to 'fairly and competently conduct proceedings on behalf of the non-subject child or protected party' and to have 'no interest adverse to that of the non-subject child or protected party'. FP(A)R 2005 Practice Direction 7 adds that all steps and decisions the litigation friend takes in the proceedings must be taken for the benefit of the non-subject child or protected party.
- It is therefore my duty to fairly and competently conduct the proceedings and accordingly I have a duty, under proper legal advice, to appraise myself of the issues in the case, and to instruct the solicitor of the course to be taken.
- As I act in a professional capacity, I, and my predecessors, have from time to time sought advice from counsel on the role of my office including where I act as litigation friend. In 2000, for example, my predecessor was advised by Mr James Munby QC (as he then was) on the question of whether the office is a public authority for the purpose of the Human Rights Act 1998. More recently I have sought the advice of Mr Peter Jackson QC, referred to below, with specific reference to the proper approach where I act as litigation friend of a protected person in placement or adoption proceedings. The standard instructions to which I make reference below are informed by the advice I, and my predecessors, have received.
Organisation of my litigation case work
- Within my office my litigation case workers (civil servants) are organised into the following divisions:
(1) Family Litigation Division (further described below): cases brought under the Children Act 1989, the Adoption and Children Act 2002 and the Family Law Act 1996;
(2) Divorce Litigation Division: cases brought under the Matrimonial Causes Act 1973, and (although as yet no cases have been referred on this basis) under the Civil Partnership Act 2004;
(3) Civil Litigation Division: other civil proceedings.
- My legal staff are lawyers drawn from the Government Legal Service. I have 10 litigation lawyers who:
(1) provide advice and directions to my litigation case workers,
(2) advise my International Division case workers,
(3) case manage certain categories of cases,
(4) assist me in the conduct of litigation where, exceptionally, I retain a case 'in house' (primarily but not exclusively the Court of Protection healthcare cases), and where I act under direction from the court, for example, to provide an advocate to the court or to undertake a Harbin v Masterman enquiry.
- In addition I have:
(1) a dedicated Court of Protection (property and financial affairs) unit comprising a further 4 lawyers,
(2) other legal and lay staff to assist me with my estates and trusts work, and
(3) the case workers of my International Division which comprises the Central Authority for England and Wales (the International Child Abduction and Contact Unit), the REMO (Reciprocal Enforcement of Maintenance Orders) Section, and the Child Trust Funds Unit.
- The Family Litigation Division presently comprises 13 case workers, organized into two teams, each managed by a Divisional Manager. Of my legal staff 6 of my litigation lawyers support the work of the Family Litigation, Divorce Litigation and International Divisions, in addition to managing their own case loads and assisting me in the conduct of litigation
Conduct of a case in Family Proceedings
The Official Solicitor then produced the Practice Direction governing his appointment in Family Proceedings: Practice Note: Official Solicitor: Appointment in Family Proceedings  2 FLR 155 and continued:
- At the end of December 2007 the Family Litigation Division held 669 cases arising out of proceedings across the whole of England and Wales. I receive on average 20 invitations a week from courts to act as litigation friend for a parent involved in proceedings under either the Children Act 1989 or the Adoption and Children Act 2002. In 2007 881 cases were recorded as referred to my Family Litigation Division. These were referrals in proceedings brought under the Children Act 1989 (both public and private law proceedings), the Adoption and Children Act 2002, and under Part IV of the Family Law Act 1996. Of these recorded referrals however 31 were duplicate files (i.e. two files were opened in error for the same matter) and a further 100 cases were rejected by me.
- During the same year 171 cases were recorded as referred to my Divorce Litigation Division, and 763 cases to my Civil Litigation Division.
- An invitation to me to act may be extended at any point during the proceedings, on occasion as late as the immediate run up to the final hearing.
- New invitations are referred to the Divisional Manager who is responsible for making initial enquiries and for making the decision (with reference where necessary to my legal staff) as to whether or not I should consent to act.
The Official Solicitor then produced a flow chart showing the steps that are taken when considering a referral.
- The Divisional Manager is responsible for making initial enquiries, and, if the case is accepted, for initial consideration of the case and for allocation of cases to a case worker. If the case is rejected the Divisional Manager will notify the court, and, where appropriate, the parties.
- The Divisional Manager will make initial enquiries to establish:
(1) the evidence that the adult lacks capacity to conduct the proceedings (and is therefore a 'protected party');
(2) that there is nobody else suitable and willing to act as litigation friend (in family proceedings, family members who might otherwise be suitable and willing to act are often potential witnesses or may be in potential conflict with the protected party as a potential kinship carer for the subject child);
(3) that there is provision for the costs of legal representation whether by way of legal aid or otherwise.
- At the time of the invitation to me to act, the protected party will usually (although not always) already be acting by solicitors. If solicitors are already acting I usually seek to ensure continuity of representation by instructing the solicitor chosen by the protected party, whom the protected party already knows, and with whom a relationship has been established. I will therefore appoint and instruct that solicitor as solicitor for the protected party. I prefer the solicitor I appoint to be a member of the relevant Law Society panel for that area of work. If the solicitor already acting at the point of my involvement is not on the relevant Law Society panel, I normally seek to ensure that the solicitor is supervised by a panel member.
- On allocation the case worker considers the papers to identify the issues, and the action which needs to be taken, and then prepares a letter of instruction to the solicitor (an example was attached) enclosing my standard instructions (a copy of which was provided) and giving any additional instructions on the facts of that case. The case worker is thereafter responsible for day to day conduct of the case acting under legal advice from the appointed solicitor and from counsel.
- My standard instructions to solicitors were revised in anticipation of the commencement of the Mental Capacity Act 2005 on 1 October 2007 and new editions were issued in October 2007. The earlier edition of the standard instructions (copies of which were provided) was discontinued on 30 September 2007.
- There are a number of reasons for maintaining standard instructions; these include the need to provide a framework within which the case workers and solicitors can co-work, and to assist in informing the solicitors about issues which may be relevant to the position of a protected party, but of which a solicitor in private practice may not have had direct experience.
- The solicitor I appoint on behalf of the protected party is the solicitor with conduct of the case acting (in the majority of cases) under a legal aid certificate. During the course of the case my case worker may however have recourse to my legal staff in accordance with an internal protocol (a copy of which was provided) (last revised in February 2007). The protocol provides a framework for referral of cases by the case workers to my lawyers for advice and directions on issues which may directly impact on my role, or with regard to which the office has particular expertise. A case may be referred to my legal staff on several occasions during the course of my involvement, or it may not be referred except with reference to my draft statement. Whether or not a referral is made to my legal staff will depend upon the facts of the case. The advice from my legal staff may give rise to additional points of instruction to the solicitor; the involvement of my legal staff does not however remove the responsibility for legal conduct of the case from the solicitor.
- The case worker is responsible for giving instructions to the solicitor on behalf of the protected party, but within the framework I have set out above and acting on proper legal advice.
- As to contact by my office with the protected party, at the outset of my involvement they are provided with a letter and leaflet (copies were provided) explaining my role. The case worker may send the letter directly to the protected party, or, if this is inappropriate for any reason (for example, where the protected party is known to have reading difficulties), ask that others such as the solicitor, or a carer communicate this information to the protected party. The leaflet identifies the case worker to whom the case has been allocated and provides his or her contact details.
- Given my existing resources and the number of cases held by each case worker at any one time, it is simply impracticable (save in exceptional circumstances) for my case workers to attend for personal meetings, although there may be direct telephone or written contact between the protected party and the case worker. The extent of such contact will vary from case to case.
- 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.
- The rules of court do not stipulate what evidence is required to rebut the presumption of capacity, although they define the test to be applied. In existing proceedings the invitation to me to act may be extended either on the basis of existing evidence, or because the court has reason to suspect that capacity may be absent and therefore seeks to investigate that issue. There are of course cases where an adult party's capacity is in issue, but that adult refuses to undergo assessment, and the court has to arrive at a determination on the existing evidence.
- Before the implementation of the Mental Capacity Act 2005 (on 1 October 2007) in order to reach a decision that a party lacked litigation capacity and was therefore a 'patient' within the meaning of rule 9.1 of the Family Proceedings Rules 1991 the court had to be satisfied:
(a) that the party was suffering from a mental disorder within the meaning of section 1(2) of the Mental Health Act 1983, and
(b) that the party was incapable of managing and administering his or her property and affairs by reason of that mental disorder.
- No statutory guidance was available as to what precisely was meant by the term 'incapable of managing and administering property and affairs' but case law established that the test was issue specific and that within this context 'affairs' meant the proceedings in question. My previous certificate and notes for guidance (copies were provided) intended to assist practitioners where the issue of litigation capacity needs to be investigated, reflected this.
- Since the implementation of the Mental Capacity Act 2005, the consequential coming into force of the Family Proceedings (Amendment) (No.2) Rules 2007, the Civil Procedure (Amendment) Rules 2007, and the Family Procedure (Adoption) (Amendment) Rules 2007 has introduced a statutory test. In each case the rules of court now provide that the test is whether a party (or intended party) lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings.
- Section 1 of the Mental Capacity Act 2005 sets out certain principles which apply for the purposes of that Act; sections 2 and 3 define what is meant by lack of capacity. The principles in section 1 include the following: a person must be assumed to have capacity unless it is established that he lacks capacity (section 1(2)); a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success (section 1(3)); and a person is not to be treated as unable to make a decision merely because he makes an unwise decision (section 1(4)).
- Section 2 provides as follows:
(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.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to (a) a person's age or appearance, or (b) a condition of his, or an aspect of his behaviour which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under the Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
- Section 3 provides, in so far as material, that:
(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).
(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 Mental Capacity Act 2005 is supported by a Code of Practice ("the Code"). The Code refers to a two-stage capacity test (see paragraphs. 4.3, 4.11-4.13) comprising:
(1) a "diagnostic test": i.e. does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? and
(2) a "functional test": i.e. does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
- The Code sets out the following examples of what may amount to an impairment or disturbance in the functioning of the mind or brain for the purpose of the diagnostic test:
(1) conditions associated with some forms of mental illness;
(3) significant learning disabilities;
(4) the long-term effects of brain damage;
(5) physical or mental conditions that cause confusion, drowsiness or loss of consciousness;
(7) concussion following a head injury, and
(8) the symptoms of alcohol or drug abuse.
- The Code emphasizes in respect of the functional test that people must be given all practical and appropriate support to enable them to make a decision for themselves and that the functional test is only satisfied if all such appropriate support has failed (paragraph 4.13).
- As regards the common law decisions on capacity, the Code states (at paragraphs. 4.31-4.33):
"The Act makes clear that the definition of "lack of capacity" and the two-stage test for capacity set out in the Act are "for the purposes of this Act". This means that the definition and the test are to be used in the situations covered by this Act. Schedule 6 of the Act also amends existing laws in other areas of law not covered directly by this Act
There are several tests of capacity that have been produced following judgments in court cases (known as common law test cases). These cover
• Capacity to litigate (take part in legal cases)
The Act's new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare issues."
- While the amended rules of court provide that the issue of capacity to conduct proceedings is now to be determined in accordance with the statutory test, the Code appears to suggest that the court can choose whether or not to adopt the new statutory definition in certain instances were a common law test already exists. In this respect the Code appears in conflict with the rules. In practice this apparent conflict does not give rise to an issue of substance. In this context I note that in Local Authority X v MM  EWHC 2003 (Fam), Munby J stated (at paragraph 78) that the leading decisions in Re MB (Medical Treatment)  2 FLR 426 and Masterman-Lister v Brutton & Co  3 All ER 162 reflect a general theory which has been given statutory force in section 3(1). In the subsequent case of Saulle v Nouvet  EWHC 2902 (QB) Mr Andrew Edis QC (sitting as a Deputy Judge of the High Court) concurred with Munby J. that the common law test for capacity to litigate and the statutory definition are essentially the same test, whilst holding (at paragraph 12) that it is not one of the purposes of the Mental Capacity Act 2005 to regulate or in any way address the way in which the court approaches the question of capacity to litigate.
- It is my view therefore that where the common law would recognise a lack of capacity, the statutory test set out in sections 2 and 3 will be satisfied. It is also my view that the reference in section 2(1) to "an impairment of, or a disturbance in the functioning of, the mind or brain" should not be narrowly construed and should not be interpreted as limited to cases of mental disorder or a cognitive impairment such as a significant learning disability, or as excluding difficulties which have a behavioural basis.
- My current certificate and the notes for guidance (copy supplied, attached as Annex 1) have been revised to reflect the statutory definition.
Investigation of capacity
- 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.
Parents with learning disability
- In cases where I act for a parent with learning disability, my case workers are directed to provide to the appointed solicitor an information sheet about relevant resources (copy supplied) and to draw the attention of the solicitor the Department of Health's guidance published in June 2007: Good practice guidance on working with parents with a learning disability which summarises relevant legislation and policy on how adult and children's services should work together to improve support to parents with a learning disability and their children.
- My staff are committed both in their case work, and through the other work of the office, to increasing awareness of the need to provide support and services to disabled parents. The Department of Health guidance came to my attention as a result of the (continuing) involvement of one of my Family Litigation Divisional Managers with the National Task Force (a consortium of agencies and individuals in England and Scotland seeking to progress policy and practice development in relation to supporting parents with learning disabilities and their children). The invitation to join the National Task Force in turn arose out of work done by my office to prepare the information sheet that I have referred to.
- In most cases I make a statement. A model outline statement is included with the standard instructions (appendix 3 to the Standard Instructions in proceedings under the Children Act 1989, and appendix 2 to the Standard Instructions in proceedings under the Adoption and Children Act 2002). The statement is made by me as litigation friend, and therefore in a representational role, rather than one of giving evidence. Inevitably therefore the content of my statement differs from, and is expressed differently from, a statement made by a party.
- The model statement annexed to the standard instructions provides a framework within which I set out a factual report of enquiries I have undertaken on behalf of the protected party (in most cases through the solicitor), make reference to the opinion of any professional expert instructed, set out the protected party's ascertainable views, wishes and feelings in respect of the orders being sought (exhibiting, where appropriate the solicitor's notes of attendance on the protected party), and give an indication to the court and to the other parties of what my submissions will be at trial, save in those cases where I wish to reserve my position. As I have no personal knowledge or information regarding the matters set out in my statement, the factual content derives from information provided by the solicitor, or the protected party, or from documents filed in the proceedings.
- My statement is drafted by the solicitor who refers the draft to my case worker. The case worker makes any necessary amendments before referring the draft statement to one of my litigation lawyers. My lawyer makes any necessary final amendments and approves the position set out, before the statement is finalised. I, or in my absence, my deputy sign my statement.
- I do not generally file a statement by the protected party as he or she would not as a matter of course give oral evidence and be cross-examined. Although I accept that there will be a minority of cases where, whilst lacking capacity to conduct the proceedings, a protected party will be a competent and (in care proceedings) a compellable witness, in most cases a lack of capacity to conduct the proceedings is likely to coincide with it being inappropriate for the party to be a witness.
- Where a party seeks to call the protected party to give oral evidence I will seek a direction for further expert assessment as to whether or not the protected party is a competent witness, whether it would be detrimental to the protected party's welfare to give oral evidence, and advice as to what special measures, if any, should be put in place. In the event that the evidence is that the protected party is a competent witness, then subject to any legal argument (on the facts of the case) as to whether or not the court should exercise its residual discretion not to compel that witness, the protected party would make his or her own statement and be called to give oral evidence.
- Where a protected party is not a competent witness, or is not to be called to give sworn evidence, he or she may still wish to address the court. My case worker will instruct the solicitor to request that the protected party be allowed to do so. Whether or not, and to what extent, this is permitted is a matter for the trial judge.
- I am under a duty to make an assessment of the protected party's best interests in the litigation and to give instructions to the solicitor accordingly. Inevitably however in many cases I am not able realistically to advance the case which the non-subject child, or protected party, would wish me to advance. Although I must take account of the protected party's views I may not abrogate my duties as litigation friend, and therefore those views are not determinative of the instructions I give the solicitor or of the position I adopt in my statement; that position may or may not accord with the protected party's views, although I will always ensure that those views are put before the court..
- I have given specific thought to the proper course to be taken where my assessment of the protected party's position differs from the party's own view. In February 2007 I sought leading counsel's advice and this was received from Peter Jackson QC in March 2007: (a copy of the opinion of counsel was provided, attached as Annex 2). My practice has continued to follow that advice, namely that in the absence of any special features calling for distinctive treatment, I present any realistic arguments and relevant evidence that may be available on behalf of the parent in relation to the issues before the court, whether these are issues of threshold, welfare or consent, and that the criterion is whether the point is reasonably arguable, not whether it is likely to succeed. I do not regard it as being in the interests of the protected person or in the interests of justice for me to present arguments that do not meet that criterion. I recognise that considerable care must be taken in making a judgement about this in an individual case.
PART TWO: MY ACTIONS IN THE PRESENT CASE
The Official Solicitor referred to a detailed Chronology which he had provided and continued:
- My office was initially contacted by letter dated 26 October 2006 from Ms SC of (firm's name given) who had been acting for Ms RP in the care proceedings since 13 September 2006. I understand that concern had been expressed by RP's legal representatives about her capacity to give instructions, that the court had given directions for the investigation of this issue, and that (SC's firm) were the lead solicitors in preparing the letter of instruction to the chosen expert HJ. HJ's report of 23 October had been received and was enclosed in SC's letter.
- In accordance with my office's usual procedures the report was considered by one of the family litigation divisional managers. My office confirmed by letter dated 31 October 2006 that on the basis of HJ' opinion I would consent to act if invited to do so.
- Accordingly on 7 November 2006, the (name) County Court invited me to act on behalf of RP. Other agreed directions were made that day and leave was given for a joint instruction of Dr O, consultant perinatal psychiatrist, to undertake an assessment of RP's parenting capacity.
- After consideration by the divisional manager the case was allocated to an experienced case worker (Ms LM) within the family litigation team on 28 November 2006. I formally consented to act on 11 December 2006.
- On consideration of the papers the case worker was concerned to ensure:
- that any assessments in relation to RP's ability to parent her daughter carried out by the local authority or experts were appropriate for someone with RP's learning difficulties, and
I would always want to ensure any family members who are willing to care for a child are assessed as potential carers as a placement within the family will usually (although not necessarily) afford the birth parent the opportunity for a continuing relationship with their child, and facilitate a proper understanding for the child, as he or she grows up, of the particular difficulties that their parent has, which has led to the child being placed with alternative carers.
- that there was appropriate consideration of family placements in the event that RP was ultimately assessed as being unable to care for KP.
In accordance with standard procedures the case worker carried out a case review and made a summary report on 7 December 2006.
At this time RP was living in a mother and baby unit alone, having been asked by her parents to leave their home in May 2006, although she was thought to spend time with Mr R who is believed to be KP's father, but who has played no part in the proceedings and who has not put himself forward to care for KP. RP was seeing KP for contact three times a week.
As SC was local and known to RP, the case worker decided to continue to instruct her; although SC was not on the Law Society's Children's Panel she was supervised by a colleague who was a Panel member.
On 11 December 2006 the case worker, wrote two letters to SC's firm confirming their instruction by me on behalf of RP. She included with these letters a letter and leaflet to be passed to RP by the solicitor with conduct of the case.
On 13 December 2006 Dr O wrote describing RP's history and advised that an adult psychiatrist at the adult learning disability service may be more appropriate placed to undertake an assessment into her parenting capacity if required. His view was that the primary problem was RP's learning disability. A report from a further psychiatrist was not pursued, as HJ was jointly instructed to provide a full psychological assessment of RP by the court's order of 19 December 2006. My case worker does not appear to have been sent the report of Dr O by SC at the time and she cannot now recall when she first saw it.
The matter returned to court on 19 December 2006 when directions were given as to the filing of evidence from HJ on the proposed teaching methods and also for the filing of the assessments being carried out by the local authority.
On 23 January and 21 February 2007 the caseworker sent letters asking SC for progress reports. On 6 March she spoke to SC's supervisor about this and on 12 March she send a further letter chasing progress. This led to discussions with SC and her supervisor that satisfied the case worker that matters were being properly pursued.
Meanwhile assessments by the local authority (February 2007) and by (a local) Children's Resource Centre (2 March 2007) reported a mixed picture, with a number of positives and a number of concerns. SC discussed these with RP, and they attended the Looked After Review together on 7 March.
At the review it was concluded that in some areas RP was progressing and that she was being given the opportunity to try to care for KP. There were, however, still areas of concern and it was noted she had to learn how to co-operate with professionals. Supervised contact between RP and KP continued with some positives, but there was a continued need for support and supervision with tasks and concern about RP's understanding of KP's specific health needs.
It was reported by the local authority in March 2007 that the maternal grandparents had indicated that if RP could not care for KP they would wish to do so and that they were going to seek independent legal advice about the matter.
I note that at the directions hearing on 24 April 2007 counsel instructed on my behalf by SC asked the court to seek leave to instruct an expert to advise on RP's capacity to consent to a placement order. This application was refused as the court did not believe a further report was necessary. HJ was however asked to address this question.
On 4 June 2007 HJ provided her full psychological assessment report of RP in accordance with the joint letter of instruction to her. She was of the opinion that RP had been given every opportunity to learn and demonstrate skills and that no further work could be undertaken with her that would increase her capacity to care for KP in any significant way. She would need 24-hour support, within which it would be realistic to expect her to assist with KP's care but not to take sole responsibility for it. This would continue throughout KP's childhood.
On 8 June 2007 (the local) Children's Resource centre filed an addendum report. They were not 'absolutely sure' that RP understood all the information given to her or that she could retain it all the time. They also noted that RP's attitude to professionals had become progressively worse and thought this was an indication that working co-operatively with RP would be potentially very difficult.
In June 2007 SC changed employment, moving from (firm) to (firm); it was agreed that she should continue acting for RP, and the file was therefore transferred to her new firm.
On 20 June the case worker wrote asking SC to consider whether any further assessments of RP's parenting could be sought.
The local authority filed its final care plan on 12 July 2007 with a recommendation of placement for adoption. It acknowledged RP's love for KP but had concerns about her understanding of KP's needs, both physical and emotional, and her ability to meet those needs without someone being there all the time to prompt and support her. There were also concerns about RP's ability to prioritise KP's needs above her own and her ability to work with professionals.
In her statement dated 23 July 2007 the social worker reported that Mr AP, RP's brother, was putting himself forward as a carer notwithstanding his previous indication that he did not want to be separately assessed but would support his parents in caring for KP if RP could not do so. The grandparents were already in the process of being assessed as potential carers. These assessments were produced in due course and were negative. There were a number of relationship difficulties noted between them and RP.
The Children's Guardian filed her report on the 26 July 2007. She, acknowledged the high level of commitment and love shown by RP, but concluded that KP's needs could not safely be met by her or by any member of her family. She supported the making of a care order and did not recommend any further psychiatric investigation.
The local authority issued an application for a placement order on 3 August 2007. In the statement of facts the local authority sought to dispense with RP's consent under s52(1)(b) of the Adoption and Children Act 2002, namely on the ground that the welfare of the child required her consent to be dispensed with.
On 14 August I received a draft statement from SC in accordance with my office's standard instructions. Following amendments by the case worker and a lawyer within my office it was forwarded to me for consideration.
On 15 August 2007 SC confirmed that she had gone though the various reports received to date with RP to ensure she understood the local authority's plan. SC advised that RP was distressed by the local authority's position of seeking a care order and then placement outside the family. RP had been clear with SC that she believed she could cope with KP herself and did not share the local authority's concerns about her ability to cope with a child with KP's needs. She was adamant that neither she nor her family would do anything to harm KP. She thought she had the necessary skills to care for KP already and could not understand why she could not take her home immediately.
On 17 August 2007 I formally consented to act as RP's litigation friend in the placement application on the basis of the evidence of capacity already before the court, and filed my statement in both sets of proceedings. In stating my position to the court I was mindful of RP's wishes, feelings and strong desire to care for KP supported by her family, and if she could not, for her family to care for KP.
I was aware that RP considered that the assessment processes were flawed and that the local authority had been biased against her from the start. I considered that there was, in the light of the evidence as a whole and the independent opinion of HJ, no evidence to support those beliefs. In the face of the unanimous professional advice I did not consider that I could present an arguable case for KP to be cared for by her mother or by other family members, nor was there a realistic basis on which I could resist the findings sought by the local authority as to threshold or the making of care and placement orders.
At the pre-hearing review on 22 August 2007, SC and counsel (Mr M) discussed with RP her giving oral evidence at the final hearing. RP agreed that she would not give evidence at the final hearing but that counsel would put her wishes via submissions.
I note that on 27 August 2007, in one of a number of fraught telephone conversations with SC around that time, and in a telephone conversation on 13 October 2006, RP asserted she had the capacity to conduct the care or placement order proceedings without a litigation friend. At no time during the course of the proceedings was my office made aware of these statements; I became aware of it on subsequent receipt of the solicitor's file.
If my office had been made aware at the time that RP had been asserting her capacity, but the solicitor and other professionals were not agreeing, I would have taken steps to give her the opportunity to be reassessed.
The final hearing took place on 29 August 2007 when care and placement orders were made.
The Official Solicitor then deals with events after the hearing, and concludes:
Having reviewed the work carried out by my office and by the solicitor instructed by me, I consider that it was conducted appropriately.
I accept that RP's learning difficulties were not as profound as those of some protected persons, but I note that her difficulties in giving instructions (in terms of understanding the issues and considering and weighing up alternative courses of action for KP) were evident both to her solicitor, who knew her over a period of a year, and each of the four counsel who were instructed.
I also consider that HJ's assessment was consistent with all the other evidence and formed a sound basis for concluding that RP lacked capacity. She was instructed before my involvement and I therefore accept that her reports do not methodically address the criteria that I have set out in this statement; nevertheless the effect of her advice is to the same effect. I do not accept that her role demonstrates apparent bias.
I consider that SC provided a supportive service to RP, who was not always an easy client. The record shows numerous appropriate meetings and discussions.
I also believe that liaison between my office and the solicitor was adequate overall; although there were times when information should have been provided to my case worker more regularly, any lapses were soon retrieved.
While there were positives in the assessment reports of RP, and she is clearly committed to her daughter, these positives were not sufficient to enable me to advance a realistic case opposing the orders sought. Nor did the evidence allow for me to champion an alternative placement within the maternal family.
I do not take any point about the manner in which the appeal has been brought and have considered RP's grounds for appeal on their merits.
I do not find any support for her claim that social workers have behaved unfairly or committed perjury. Nor do I accept that her solicitor (or my office) was in collusion with the local authority, or that the solicitor failed to give proper attention to her case.
In the Position Statement filed on her behalf on 17 December 2007 (paragraphs 19, 28, 34 and 39) RP states that she was not informed about my appointment and my role. This was clearly not the case, as the records demonstrate.
In conclusion, much though I understand RP's distress at the decision of the court in relation to KP, I do not accept her assertion that my appointment by the court was unlawful, that her voice was not heard or that her undoubted right to a fair trial was denied.
OFFICIAL SOLICITOR TO THE SUPREME COURT
Dated 3 March 2008
ANNEXES TO REPORT
A Official Solicitor's Capacity Certificate and Notes for Guidance
B Advice of Mr Peter Jackson QC (March 2007)
CERTIFICATE AS TO CAPACITY
TO CONDUCT PROCEEDINGS
*You should read the whole of this form and the attached notes for guidance before completing this form. Please answer all questions as fully as you can.
Name of person concerned:
Date of birth:
1. The proceedings are
(and see paragraph 3 below)
Insert your full
name and address
Give your professional
For a definition of 'a person who lacks capacity' see note 2 attached
Nature of your professional relationship with the person concerned:
I have acted as practitioner for the person concerned since
. and last assessed him/her on
I assessed the person concerned on
.. following a referral from
AND in my opinion
is capable (within the meaning of the Mental Capacity Act 2005) of conducting the proceedings*
lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings*
(*strike through as appropriate)
If in your opinion
is a person who lacks capacity to conduct the proceedings please answer questions 2-8 below
2. The person concerned has the following impairment of, or disturbance in the functioning of, the mind or brain (see note 2):
this has lasted since:
3. As a result, the person concerned is incapable of conducting the proceedings described below and/or in the attached letter of instructions.
because (please tick as many boxes as apply)
he or she is unable to understand the following relevant information (please give details):
he or she is unable to retain that information (please give details)
he or she is unable to use or weigh the following information as part of the process of making the decisions in the conduct of the proceedings:
for cases where the person can in fact understand, retain and use / weigh the information he or she is unable to communicate his or her decisions by any means at all (please give details):
4. Do you consider that the person concerned might regain or develop capacity to conduct the proceedings in the future -
Yes - please state why and give an indication of when this might happen
No - please state why
5. Is the person concerned capable of discussing the proceedings with my representative or with a solicitor instructed by me?
6. If so, is such discussion likely to affect him/her detrimentally and if so, in what way?
7. Has the person concerned made you aware of any views that he / she has in relation to the proceedings?
8. Any additional comments
Statement of Truth:
I confirm that insofar as the facts stated in this certificate are within my own knowledge I have made clear which they are and I believe them to be true and that the opinions I have expressed represent my true professional opinion.
Please read these notes before completing the Certificate
Where a person who is involved in legal proceedings lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings, their interests must be protected by the appointment of a 'litigation friend' who will conduct the proceedings on their behalf. In some proceedings the litigation friend is known as a 'next friend' or 'guardian ad litem'. The Official Solicitor is usually approached in cases where there is no other suitable person who is willing to act. Evidence is required to establish whether the person lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct the proceedings. A person who lacks capacity to conduct proceedings is referred to as the 'protected party' within the proceedings.
Capacity to conduct proceedings
The Mental Capacity Act 2005 (section 2 (1)) provides that a person lacks capacity if, at the time a decision needs to be made, he or she is unable to make or communicate the decision because of an 'impairment of, or a disturbance in the functioning of, the mind or brain' .
The Act contains a two-stage test of capacity which has diagnostic and functional elements:
1. Is there an impairment of, or disturbance in the functioning of, the person's mind or brain?
2. If so, is the impairment or disturbance such that the person lacks the capacity to make decisions in relation to the proceedings.
Please refer to the information set out in your instructions and any accompanying letter for details of the proceedings and relevant information about the circumstances of the person
The assessment of capacity must be based on the person's ability to conduct the proceedings and not on his/her ability to make decisions in general. It does not matter therefore if the lack of capacity is temporary, or the person retains the capacity to make other decisions, or if the person's capacity fluctuates.
To have capacity to conduct the proceedings the person must have capacity to understand, absorb and retain information (including advice) relevant to the issues on which his consent or decisions are likely to be necessary in the course of the proceedings, sufficiently to enable him or her to make decisions based upon such information. This includes the ability to weigh information (and advice) in the balance as part of the process of making decisions within the proceedings and the ability to communicate his decision (whether by talking, using sign language or any other means).
A lack of capacity cannot be established merely because of a person's age or appearance or his condition or an aspect of his behaviour. Similarly a person is not be treated as being unable to make a decision merely because he or she has made an unwise decision.
Practitioners are required to have regard to the statutory principles set out in section 1 of the Mental Capacity Act 2005 and to the Code of Practice, in particular Chapters 2, 3 and 4, when assessing capacity.
The statutory principles provide that:
'(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision'
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or make , in his best interests
The Code of Practice is available on line at www.publicguardian.gov.uk.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action'.
If it is your opinion that the person does have capacity to conduct the proceedings, there is no need for you to give grounds for that opinion. However, if you are of the opinion that the person lacks capacity to conduct the proceedings, the Official Solicitor's certificate requires you to state in paragraphs 2 and 3 the grounds for that opinion.
It may assist you to know that particularly in cases of periodic remission, the Official Solicitor will ensure that the protected party's condition is regularly reassessed for the purpose of the legal proceedings. In an appropriate case the Official Solicitor will take immediate steps for his removal as guardian ad litem, next friend or litigation friend to enable the protected party to resume personal conduct of the proceedings.
This certificate relates only to the proceedings in which the protected party is currently involved. A separate certificate may be required if any application is made to the Court of Protection. Similarly, separate considerations apply to any question whether the person is subject to compulsory detention under the Mental Health Act 1983: in some cases the person concerned is liable to compulsory detention but may have capacity to conduct proceedings, and in many other cases the person concerned lacks capacity to conduct proceedings but is not liable to compulsory detention.
The Role of the Official Solicitor
in cases under the Adoption and Children act 2002
1. I am asked to advise the Official Solicitor on his duties as litigation friend for a parent (whether a patient or a non-subject child) who is a party to proceedings under the Adoption and Children Act 2002. He wishes to review the approach that he takes in these cases in the light of his obligations under the Human Rights Act 1998 and having regard to the gravity of the issues involved for the parents and children concerned.
2. My instructions identify the following possible responses by the Official Solicitor to cases where a parent who lacks litigation capacity opposes the making of a placement or adoption order1:
- To seek his own discharge as litigation friend where his assessment conflicts with the parent's wishes
- To oppose the application on principle
- To abstain from expressing a view on the application, other than to supply information about the parent's views and where appropriate call evidence
- To continue the present practice, as described in paragraph 28 of my instructions:
28 As litigation friend the Official Solicitor presently comments in any statement filed by him on whether or not adoption is required to safeguard and promote the child's welfare throughout their life (s1(2)), whether there is sound evidence that the parent is incapable of giving consent, on the parent's views, on whether or not (as litigation friend) he opposes the application, and whether there is any basis on which he can realistically oppose the request to dispense with the parent's consent. He sets out his position (paragraph 15 of the model statement) on whether or not he supports or opposes the making of a placement order, irrespective of whether or not the parent has the capacity to consent, and is withholding their consent.
- To take some different course
3. There are broadly two relevant categories of parent:
- Those who lack capacity both to consent and to litigate usually those with severe mental incapacity
- Those who have capacity to consent but lack capacity to litigate usually the very young parent or the less seriously mentally incapacitated person
4. The general duty of a litigation friend is the same in each case. As set out in the Practice Direction:
"It is the duty of a litigation friend fairly and competently to conduct proceedings on behalf of the non-subject child or patient
and all steps and decisions he takes in the proceedings must be taken for the benefit of the non-subject child or patient." 2
5. The meaning of 'conduct proceedings on behalf of' is not further defined, but the statement encapsulates the two magnetic influences upon the conduct of the litigation friend. The prime motivating factor is beneficence acting for the parent's benefit. The second is competence acting according to proper professional standards.
6. Incapacity to litigate arises in a wide range of circumstances and as litigation friend of last resort the Official Solicitor by definition acts for some of the most varied and unfortunate litigants. The schizophrenic adult parent and the 12-year-old child parent may be legally indistinguishable, but their cases may call for very different kinds of presentation. While the need for a consistent and principled approach to the rτle of litigation friend is acknowledged, in each case the Official Solicitor's overriding obligation is to judge what form of representation best meets the needs of the individual parent. Any generalisation that impinges on this aspiration must be viewed with suspicion.
7. That said, it is obviously desirable that there should be a 'default model'. Of those possibilities listed in paragraph 2 above, the two most extreme can immediately be discarded. For the reasons given below (paragraphs 13-14), the Official Solicitor is not obliged to withdraw simply because he is unable to act as the parent would wish. Nor can he put up an unreasoning opposition simply because the parent might approve. Neither stance would be to the parent's true benefit, nor would they amount to fair and competent conduct of the litigation, nor would they serve the interests of justice.
8. I believe that in the absence of any special features calling for distinctive treatment, the correct course for the Official Solicitor to take is to present any realistic arguments and relevant evidence that may be available on behalf of (i.e. in support of) the parent in relation to the issues before the court, whether these are issues of threshold, welfare or consent. The criterion should be whether the point is reasonably arguable, not whether it is likely to succeed.
9. There is a distinction to be drawn between cases where there are arguments to be made on behalf of a parent, and those where there are none. There is a further distinction to be drawn between making an active case and taking a passive stance.
10. In relation to issues where there are no realistic arguments to be made, it will almost always, both as a matter of principle and semantically, be more appropriate not to oppose than to make explicit concessions.
11. I also consider that in cases where the parent's preferred position is not arguable, the Official Solicitor can properly focus on the position of the parent and be cautious about making submissions about the welfare of the child subject that conflict with the parent's perception.
12. Why, it might be asked, should the Official Solicitor advance an active case when there is one to be made, but not assert a negative one when there is not? It is true that where a litigation friend represents a child subject, he is obliged to present a full case on all issues, but I do not think the same applies where the party represented is the parent. The litigation friend is there acting in the interests of the parent and not of the child.
13. The requirement that a person under juristic disability should have a litigation friend does not in itself breach the person's rights under ECHR Article 6: see for example Stewart-Brady v UK (1997) 24 EHRR CD38. Nevertheless, there can be no doubt that to avoid such a breach, the litigation friend must act properly and with due regard to the person's rights and wishes. This in my view translates into an obligation, when departing from the person's wishes, to oppose, frustrate or negate them to the least necessary extent.
14. This point is taken up in my instructions:
33 The issue of concern to the Official Solicitor is whether he is properly discharging his duty to a parent within the proceedings, having regard to Articles 6 and 8 of the ECHR, and the final and emotive nature of adoption, in circumstances where the parent lacks litigation capacity but has capacity to consent to placement / adoption, and is withholding consent, if the Official Solicitor as that parent's litigation friend (having considered the evidence) supports the making of a placement / adoption order.
15. I agree that in this situation there would be a tension (though not an inevitably unlawful one) between the Official Solicitor's position and the parent's rights. This tension can however be avoided or diminished if the Official Solicitor does not positively support the making of the relevant order indeed that the circumstances in which he would wish to do so should surely be rare.
16. There are several other possible reasons for taking this view:
(i) The parent would not be obliged to make concessions if acting autonomously and there is no reason why they should be made on his/her behalf.
(ii) It may be gratuitously distressing and offensive to (and thus not in the interests of) the parent to hear their representative making submissions that are flatly in opposed to their own views and feelings.
(iii) A decision of such gravity should be made by the court scrutinising the evidence, and not by concession.
(iv) Such concessionary submissions are almost always superfluous to the decision taken by the court.
17. I therefore believe that the rτle of litigation friend in these cases can properly performed by making a positive case whenever this can properly be done without detriment to the parent, but where such a case cannot be made, to confine submissions to statements that (for example) the Official Solicitor does not wish to make submissions on this issue/ makes no contrary submissions on that issue/ does not oppose such-and-such a conclusion on another issue.
18. This approach closely resembles the Official Solicitor's current practice, but underlines the element of abstention where concession serves no good purpose.
19. I reiterate that there may be cases in which it is in the parent's interests for a case contrary to his/her wishes to be actively pursued, or where the failure to concede an issue might appear unrealistic or fatuous, but these might be seen as exceptions.
Observations on current practice
20. In the light of the above considerations there are two aspects of Paragraph 28 of my instructions (set out on page 2 above) that call for thought:
(i) Welfare: it is said that the Official Solicitor will comment on whether or not adoption is required to safeguard and promote the child's welfare (s1(2)). In a case where the evidence to this effect is plain, it may be adequate to note this. A positive statement that adoption is in the child's interests is unlikely to be necessary.
(ii) Ultimate stance: it is said that the Official Solicitor will set out whether he supports or opposes the application. In fact Paragraph 15 of the Model Statement more correctly expresses the Official Solicitor's position as one of opposition or non-opposition.
21. These modifications better chime with paragraph 31:
31 It is however difficult to see that it could ever be in the patient's own interests (as opposed to the best interests of the subject child) to support the making of a placement/adoption order where the patient has the capacity to consent and has indicated he or she does not consent.
22. I have also looked at the Official Solicitor's Standard Instructions to Solicitors in cases under the Adoption and Children Act 2002.
[Paragraphs 23-25: suggestions for redrafting this document]
26. The Official Solicitor's current practice in these cases is broadly consistent with his duties as a litigation friend and his obligations under the Human Rights Act. However, where there is no arguable case to be made on behalf of a parent I recommend (1) that comments on matters not directly relating to the parent's own situation and his/her capacity to consent can properly be kept to a minimum, and (2) that formal concessions should likewise be avoided, where the same result can be achieved by expressing non-opposition or by abstaining from comment.
Peter Jackson QC
4 Paper Buildings
13th March 2007
Note 1 Attorney-Generals Memorandum, 19 December 2001  Fam Law 229
Note 2 Harbin v Masterman  1 Ch 351
Note 3 The Central Authority for England and Wales for the 1980 Hague Convention on the Civil Aspects of International Child Abduction, for the Council Regulation (EC) No 2201/2003, and for the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children. [Back]
Note 4 Save that I note that r21.3 of the CPR 1998 and r52 of the FP(A)R 2005 allow the court to exercise a discretion to permit further steps in the proceedings absent the appointment of a litigation friend. There is no equivalent provision under the Family Proceedings Rules 1991, which apply to this case. [Back]
Note 5 Masterman-Lister v Brutton & Co  3 All ER 162 [Back]
Note 6 SI 2187/2007 [Back]
Note 7 SI 2204/2007 [Back]
Note 8 SI 2189/2007 [Back]
Note 9 Although care proceedings raise different issues to placement and adoption proceedings, the analysis of the litigation friends rτle is the same.
Note 10 Practice Direction Litigation Friends, paragraph 2.1, borrowed from CPR 1998 PD21. [Back]
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