Neutral Citation Number: [2008] EWCA Civ 15
Case No: B4/2007/2168
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
HH JUDGE BUTLER QC
NOTTINGHAM COUNTY COUNCIL
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/01/2008
Before :

LORD JUSTICE WALL
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P (A child)
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Miss P attended court (together with a MacKenzie Friend)

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Hearing date : 16th January 2008
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Judgment
Lord Justice Wall : 
1.	This is an application by the mother of a female child born on 7 May 2006 for permission to appeal against care and placement orders made by Her Honour Judge Butler sitting in the Nottingham County Court on 29 August 2007. Although this judgment is a public document, and although in due course there may be an application for the child and her mother to be identified, I have, for the time being and with the applicant’s agreement, imposed reporting restrictions. Nothing must therefore be published which would identify the child or her mother; and I propose in this judgment to refer to the child as KP and to her mother as “the applicant”. 
2.	KP was born prematurely on 7 May 2006, and 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.  Care proceedings in relation to her were instituted in September 2006, and on 23 November 2006, pursuant to an interim care order, she 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 the applicant. 
3.	The judge’s judgment, which is extremely short, refers to the fact that assessments had been undertaken by the local authority of the applicant herself, and of various members of the applicant’s family. None was, however, deemed capable of caring for KP, whose father does not appear to play any part in the proceedings.
4.	In the care proceedings, the judge found the threshold criteria under section 31 of the Children Act 1989 (the 1989 Act) were satisfied, and 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 care plan was for adoption, 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 also issued proceedings under the Adoption and Children Act 2002 the 2002 Act), seeking a placement order under section 21. These proceedings were consolidated with the care proceedings, and heard together by the judge.
5.	The applicant was represented before the judge in both the care and the placement proceedings by the Official Solicitor, who did not oppose the making of the care order, and accepted on the applicant’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; it goes on to record (accurately) that the applicant’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. 
6.	The applicant seeks permission to appeal 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 hearing before me on 16 January 2008, the applicant, 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. 
I have been refused access to paperwork by my solicitor, which also has hindered my defence.  
7.	HJ is a consultant clinical psychologist. On 19 September 2006, the parties to the care proceedings were given permission by the district judge to disclose the case papers to HJ in order for her to prepare a report upon the applicant’s competence to instruct her solicitor. According to the order, the applicant’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.
8.	HJ duly interviewed the applicant and reported on 23 October 2006. Her conclusion, expressed  in paragraph 3.1 of her report, was in the following terms: -
Because of the difficulties (the applicant) 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.
9.	On 7 November 2006, the district judge, in the care proceedings, directed that the documentation in the case be released to the Official Solicitor, and the Official Solicitor be invited to act on behalf of the applicant.  On the same occasion, the district judge gave the parties permission to seek a psychiatric report on the applicant from a consultant psychiatrist, Dr. O, with once again the applicant’s solicitors taking the lead and a joint letter of instruction being filed. Dr. O responded  by letter on  13 December 2006.
10.	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 propose teaching methods to be implemented in the parenting assessment of the applicant. 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.
11.	On 24 April 2007, the final hearing fixed for May 2007 was  vacated,  and an order made for consolidation of the care proceedings with proceedings for KP’s placement under the 2002 Act, which the local authority had by then instituted.  The Official Solicitor was invited to act in the placement 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. 
12.	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 the applicant, and that the solicitor in question had spoken to and met the applicant on a number of occasions. He then records the applicant’s belief that she would be able to provide appropriate care for KP, and 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 (the applicant’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 (the applicant) is unable to care for KP, she would like to have continuing direct contact with her.
21. (The applicant) 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.  (The applicant) feels that she should have the right to a family life and that if KP were to reside in her care, that there would be no risk of significant harm. 
13.	Having considered all the evidence, however, the Official Solicitor, in the exercise of what he described as his “duty to conduct this case on (the applicant’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 the applicant was  not in a position to consent or refuse her consent to the placement order; and 94) that he could not oppose the local authority’s application for such an order. 
14.	The applicant’s case, as advanced by the applicant herself, her McKenzie friend, and by a Member of Parliament who attended on her behalf, 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 arguments were advanced by her and on her behalf. As I noted them these were:
1.	The appointment of the Official Solicitor in the case was unlawful. The applicant throughout understood what the case was about, and in any event family members were available to represent the applicant.

2.	The expert who had been appointed, notwithstanding her duty to the court, had wrongly and unlawfully failed properly to address the question of the applicant’s capacity – see Masterman-Lister v Brutton & Co (Nos 1 and 2) [[2002] EWCA Civ 1889; [2003] EWCA Civ 70 and [2003] 1 WLR 1511. 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 the applicant’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.	The applicant accepted that the process of re-uniting her with KP would be gradual. However, the applicant had the mental capacity to conduct the proceedings, and should have been permitted to do so.

5.	The applicant had asked about her ability to appeal against Judge Butler’s order and had sought permission to appeal from the judge.

15.	On 8 January 2008, the Official Solicitor wrote to this court – a letter which was copied to the applicant. In it, the Official Solicitor made it clear that the current application for permission to appeal was not being  brought by him in his capacity as the applicant’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). 
16.	Having set out a history of the proceedings, the Official Solicitor referred to an application made by the applicant 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 came before HH Judge Jenkins on 2 January 2008. He directed that the application be heard on 11 February 2008 with a time estimate of one and a half days.  The issues which the court will address on that date, according to the Official Solicitor, are the following: -
1.	The applicant’s capacity to conduct the proceedings
2. 	If she is found to lack capacity, an application for her      brother 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 
4.  	If leave is granted, the application to revoke the placement order.
17.	In paragraph 6 of the order, Judge Jenkins directs that the order and what he describes as “this purported application” be sent to his court before 16 January 2008, and in paragraph 7 this court is invited to inform the Nottingham County Court of the outcome of the applicant’s application, so that the judge may consider any further directions that may be appropriate.
Discussion
18.	The questions raised by the applicant in her application to this court are, it seems to me, important, and make a number of serious allegations against various of the professionals engaged in the case. They also throw into sharp focus the procedure to be adopted whenever the Official Solicitor is invited to act as litigation friend for a person who lacks the capacity to conduct proceedings for him or herself.  
19.	Neither the Official Solicitor nor the local authority has had the opportunity to address the points made by the applicant. Equally, I know 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. 
20.	I have therefore come to the conclusion that this application provides a useful basis for this court to consider these questions, and I direct that the applicant’s application for permission to appeal be listed on notice to the Official Solicitor and the local authority, with the appeal to follow if permission is granted. I have made enquiries of this listing office, and the application can be heard by the full court on 4 March 2007. Subject to any representations made by the parties, that is the date which will be fixed for the hearing in this court. 
21.	I am proceeding in this way because the case involves the future care of a very small child, and is thus urgent.  Where cases are listed in this way, it is not always possible to consult the convenience of counsel. It would, however, plainly be of material assistance if the applicant were able to obtain legal advice prior to 4 March 2007, and were she to be represented by counsel on that occasion. Given the allegations which she makes, it would, for example, also be sensible if she could be advised about the waiver of privilege in relation to the communications which she had with her solicitor.  She should also take the opportunity to clarify whether or not she is seeking permission to appeal against the care order made by the judge.   
22.	I should also be grateful if the Official Solicitor could provide us 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 his actions in the instant case. The court would also welcome, I think, his submissions on the interrelationship between ECHR Article 6 and his representation of a litigant who lacks the capacity to conduct proceedings. 
23.	Given the date which has been allocated for the hearing, it will be necessary for the hearing in the Nottingham County Court for 11 February to be vacated.  This is to be regretted, since it is not easy to find one and a half days in a busy county court list. I am, however, consoled by the thought that if this court either refuses permission to appeal or dismisses the appeal, the placement order will remain in being, and it may be very difficult for the applicant to pursue an application for leave to set it aside. If, on the other hand, this court allows the applicant’s appeal against the placement order, the likely outcome would be a re-hearing of that application which, in any event, would be unlikely to be ready by 11 February 2008.
24.	I do not propose to direct a stay of the placement order pending the hearing of the application for permission to appeal. KP’s difficulties make it highly unlikely that she could be placed before 4 March 2008, and, in all the circumstances of the case, I would not want the local authority to feel inhibited in its search for prospective adopters, even if the ultimate outcome were that the placement order is set aside.  
25.	For these reasons, the application for permission to appeal will, accordingly, be adjourned to be heard by the full court on 4 March 2008, with the appeal to follow if permission is granted. In addition, I direct that a copy of this judgment be forwarded to the Nottingham County Court for the attention of HH Judge Jenkins, so that he can consider the future conduct of the proceedings in his court.