A consideration of the ECHR decision in R.P and Others v The United Kingdom 2012
You may remember this case from 2008 in the Court of Appeal – it was an appeal brought on behalf of a woman who had been judged to lack litigation capacity, and who had been represented through the Official Solicitor in care proceedings. The Official Solicitor had eventually not contested the care order at final hearing, and the woman then contacted John Hemming MP, and an appeal was brought on the basis that :-
(a) The assessment of her litigation capacity was wrong
(b) The assessment of her litigation capacity was fundamentally flawed as it had been obtained by an expert report funded by all parties, and thus the expert had a financial interest in reaching a particular conclusion (i.e because the LA were paying some of the experts fees, the expert had a financial conflict of interest and delivered a verdict they wanted)
(c) That the entire principle of a person being unable to fight a Care Order when they wished to do so, purely because they lacked capacity was unfair and discriminatory against the most vulnerable persons in society.
The Court of Appeal dismissed the appeal, and it is a judgment worth reading. I know that Mr Hemming disagrees with the conclusions, as he is entitled to, and I put that caveat in so that people know that there is a different perspective to that in the judgment. [That judgment is at http://www.bailii.org/ew/cases/EWCA/Civ/2008/462.html]
The case finally reached the ECHR and their judgment can be found at :-
The Claimant was unsuccessful on all counts, but I still think that the case raises some important issues. It does feel uncomfortable that every parent, no matter the quality of their case has the right to be legally represented and challenge the recommendations of the State and to test that evidence UNLESS they lack litigation capacity and the Official Solicitor takes a view that the case should not be contested.
It does seem to me that a person can lack litigation capacity to know what a care order is, or what a threshold criteria document is, or even to be taken through individual allegations and be able to respond to them, but I think fundamentally it is not difficult to judge whether the view of a parent in a care case is “I want my child back” or “I don’t want my child to be adopted” and I think that case ought to be put.
What RP didn’t really get massively into was the ability of the Official Solicitor to effectively throw the towel in on behalf of a parent who lacks capacity to instruct a solicitor but still has firm views on that central question of ‘I want my child back’. If the O/S always approached cases on the basis of ‘if the parent is saying they want the child back, that case must be put, but it will be for the O/S to instruct the solicitor on HOW to put the case’ I would be quite happy. Like John Hemming MP, I do feel uncomfortable when the O/S throws the towel in – even where the evidence is overwhelming.
[After all, there were probably stages of Alas Al Wray where the evidence looked overwhelming…]
The ECHR accepted the view of the UK that where a person lacks litigation capacity, the Official Solicitor can be appointed and conduct the litigation and that the O/S has to do what they consider is in the child’s best interests.
[Now, in my humble and trivial opinion, sometimes what the parents consider to be the child’s best interest and what the child’s best interest is completely overlaps, sometimes they are diametrically opposed and more often than either, sometimes it takes a Court hearing and a determination of the evidence to see whether those two views overlap or are incompatible – that’s why we have Court hearings]
And of course, the need to conduct the ligitation with the child’s best interests at the forefront, rather than the parents wishes, is not a stipulation that applies to those receiving instructions directly from parents. [With some caveats – a solicitor isn’t allowed to lie to a Court on your instructions, or conceal child abuse, but if a parent says ‘I want you to fight the case’ a solicitor isn’t obliged to decide whether fighting the case is good for the child, they let the Judge make that ultimate decision]
I think the submissions of the Equality and Human Rights Commission are interesting and worth reading.
- 58. 3. The submissions of the Third Party intervener
- The Equality and Human Rights Commission (“the Commission”) submitted that learning-disabled parents in the United Kingdom were more likely to have their children removed from their care than other parents and frequently did not receive the support which they needed in order to retain custody of their children. Consequently, decisions about the removal of children from learning-disabled parents required very close scrutiny of the support offered to the parents.
- The Commission further submitted that Articles 6, 8 or 14 could be breached if limitations were placed on a learning-disabled litigant’s right of access to a court which were not strictly necessary, or if a litigation friend did not take sufficient positive steps to ensure that the specific needs and interests of such a parent were properly taken into account. In particular, it was important that strong procedural safeguards existed to ensure that the parent’s views were properly, fully and fairly advanced before the court. In order for this to be the case, it was essential that decisions about the parent’s litigation capacity should not be taken on the basis of a joint report part-funded by an opposing party in family litigation; that the question of capacity be kept open, with a formal institutional/legal mechanism for it to be challenged by the learning-disabled person and reviewed if any evidence suggested it could be wrong or that the position had changed; and that the case put forward by the Official Solicitor or other litigation friend should be focused solely on the needs of the parent.
The ECHR were satisfied that the UK system has sufficient safeguards for establishing whether a person has litigation capacity and whether they are entitled to challenge such assessment, for the Official Solicitor role to operate properly and for this to be explained to the person, that the system did not discriminate against those with a disability, and that the system of jointly funding experts did not lead to a conflict of interest.
[Frankly, as a Local Authority lawyer who knows the financial budgetary problems, I’d have been delighted if the ECHR had decided that the LA could no longer share in the costs of instructing an expert]
Here is the reasoning on this element
In cases involving those with disabilities the Court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned (see, for example, Shtukaturov v. Russia, no. 44009/05, § 68, 27 March 2008). This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the Court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Article 6 § 1 of the Convention. In assessing whether or not a particular measure was necessary, the Court will take into account all relevant factors, including the nature and complexity of the issue before the domestic courts and what was at stake for the applicant (see, for example, Shtukaturov v. Russia, cited above, § 68).
It is clear that in the present case the proceedings were of the utmost importance to R.P., who stood to lose both custody of and access to her only child. Moreover, while the issue at stake was relatively straightforward – whether or not R.P. had the skills necessary to enable her successfully to parent K.P. – the evidence which would have to be considered before the issue could be addressed was not. In particular, the Court notes the significant quantity of expert reports, including expert medical and psychiatric reports, parenting assessment reports, and reports from contact sessions and observes the obvious difficulty an applicant with a learning disability would have in understanding both the content of these reports and the implications of the experts’ findings.
In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the Court considers that it was not only appropriate but also necessary for the United Kingdom to take measures to ensure that R.P.’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect R.P.’s interests might in itself have amounted to a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, T. v. the United Kingdom [GC], no. 24724/94, §§ 79 – 89, 16 December 1999).
It falls to the Court to consider whether the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of R.P.’s right of access to a court. In making this assessment, the Court will bear in mind the margin of appreciation afforded to Contracting States in making the necessary procedural arrangements to protect persons who lack litigation capacity (Shtukaturov v. Russia, cited above, § 68).
With regard to the appointment of the Official Solicitor, the Court observes that he was only invited to act following the commissioning of an expert report by a consultant clinical psychologist. In assessing R.P., the psychologist applied the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2)  EWCA Civ 1889; Masterman-Lister v Jewell and another  EWCA Civ 70, namely whether R.P. was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which her consent or decision was likely to be necessary in the course of the proceedings. She concluded that R.P. would find it very difficult to understand the advice given by her solicitor and would not be able to make informed decisions on the basis of that advice, particularly when it involved anticipating possible outcomes. The psychologist produced two more reports in the course of the proceedings, the second of which contained a further assessment of R.P.’s litigation capacity. In that report she noted that R.P. did not have the capacity to give informed consent to a placement order as she could not really understand the proceedings, except at a very basic level. The Court is satisfied that the decision to appoint the Official Solicitor was not taken lightly. Rather, it was taken only after R.P. had been thoroughly assessed by a consultant clinical psychologist and, while there was no formal review procedure, in practice further assessments were made of R.P.’s litigation capacity in the course of the proceedings.
The Court considers that in order to safeguard R.P.’s rights under Article 6 § 1 of the Convention, it was imperative that a means existed whereby it was possible for her to challenge the Official Solicitor’s appointment or the continuing need for his services. In this regard, the Court observes that the letter and leaflet which the Official Solicitor sent to R.P. informed her that if she was unhappy with the way her case was being conducted, she could speak to either S.C. or to the Official Solicitor, or she could contact a Complaint’s Officer. Moreover, in his statement to the Court of Appeal the Official Solicitor indicated that R.P. could have applied to the court at any time to have him discharged. Alternatively, he indicated that if it had come to his attention that R.P. was asserting capacity, then he would have invited her to undergo further assessment. While the Court observes that these procedures fall short of a formal right of appeal, in view of the finding that R.P. lacked litigation capacity, it considers that they would have afforded her an appropriate and effective means by which to challenge the appointment or the continued need for the appointment of the Official Solicitor.
The Court does not consider that it would have been appropriate for the domestic courts to have carried out periodic reviews of R.P.’s litigation capacity, as such reviews would have caused unnecessary delay and would therefore have been prejudicial to the welfare of K.P. In any event, as noted above (see paragraph 69), assessments were in fact carried out of R.P.’s litigation capacity in the course of the proceedings. The Court would also reject R.P.’s assertion that she should have been encouraged to seek separate legal advice at this juncture. In view of the fact that she had been found to lack the capacity to instruct a solicitor the Court does not consider that this would have been a necessary or even an effective means by which to protect her interests.
As stated in paragraph 61 above, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective and this is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (Airey v. Ireland, cited above, § 24). Consequently, any means of challenging the appointment of the Official Solicitor, however effective in theory, will only be effective in practice and thus satisfy the requirements of Article 6 § 1 of the Convention if the fact of his appointment, the implications of his appointment, the existence of a means of challenging his appointment and the procedure for exercising it are clearly explained to the protected person in language appropriate to his or her level of understanding.
In this regard, the Court recalls that the letter sent to R.P. indicated that the Official Solicitor would act as her guardian ad litem and would instruct her solicitor for her. It further indicated that S.C. would tell the Official Solicitor how R.P. felt about things and that he would consider her wishes and views before he filed a statement on her behalf. He would do his best to protect her interests but also had to bear in mind what was best for K.P. The leaflet accompanying the letter informed R.P. that the Official Solicitor made decisions about court cases, such as whether to bring, defend or settle a claim. Under the heading “Will the client be consulted” R.P. was informed that “the instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager”. If she was dissatisfied with the way her case was being conducted, she was informed that she should discuss the matter either with S.C. or the Official Solicitor’s Office. If she remained dissatisfied she could write to the Complaint’s Officer. While the Court accepts that R.P. might not have fully understood, on the basis of this information alone, that the Official Solicitor could consent to the making of a placement order regardless of her own personal wishes, it cannot ignore the fact that she was at all times represented by S.C. and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the implications of his appointment. Indeed, in this regard the Court recalls that S.C.’s conduct of the case was commended by the Court of Appeal which found, in its judgment of 8 May 2008, that R.P. had been fully informed of the involvement of the Official Solicitor and the nature of his role. Nevertheless, she did not seek to complain until ten months after his appointment and two days before the final hearing.
74. Consequently, the Court considers that adequate safeguards were in place to ensure that the nature of the proceedings was fully explained to the applicant and, had she sought to challenge the appointment of the Official Solicitor, procedures were in place to enable her to do so (cf. Stanev v. Bulgaria, [GC], no. 36760/06, 17 January 2012, where no direct access to court was open to the applicant to have his status as a partially incapacitated person reviewed by a court).
- 75. With regard to the role of the Official Solicitor in the legal proceedings, the Court recalls that he was to act “for the benefit of the protected party”. The Court has taken note of R.P.’s concerns about his focus in the present case on “what was best for K.P.”. However, the Court accepts that the best interests of K.P. were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in K.P.’s best interests. Consequently, the Court does not consider that the fact the Official Solicitor “bore in mind” what was best for K.P. in deciding how to act amounted to a violation of R.P.’s rights under Article 6 § 1 of the Convention.
- 76. Moreover, the Court does not consider that “acting in R.P.’s best interests” required the Official Solicitor to advance any argument R.P. wished. On the contrary, it would not have been in R.P.’s – or in any party’s – best interests for the Official Solicitor to have delayed proceedings by advancing an unarguable case. Nevertheless, in view of what was at stake for R.P., the Court considers that in order to safeguard her rights under Article 6 § 1 of the Convention, it was imperative that her views regarding K.P.’s future be made known to the domestic court. It is clear that this did, in fact, occur as R.P.’s views were referenced both by the Official Solicitor in his statement to the court and by R.P.’s counsel at the hearing itself.
- 77. Moreover, the Court recalls that R.P. was able to appeal to the Court of Appeal. Although she was not legally represented in the appeal proceedings, this was through choice as she refused the assistance of pro bono counsel which the Official Solicitor had secured for her. Nevertheless, the Court notes that in the course of the appeal proceedings she was afforded ample opportunity to put her views before the court, and her arguments were fully addressed in the court’s judgment.
[If you have read the Court of Appeal decision, you will be aware that whether this letter was sent was a matter of great factual dispute, with it being alleged that it had been falsely inserted into the file by the solicitor as a ‘back covering exercise’ after the event but never actually sent. The Court of Appeal rejected that allegation fairly forcefully, but one can see the critical importance of proper documentation prepared in a way that the client can comprehend being provided in a timely fashion]
All of this seems to go away, of course, now that the Practice Direction suggesting that the Official Solicitor may cheerfully refuse to act on behalf of someone lacking litigation capacity and that the solicitor should take instructions from the client’s friends, family, neighbour, friendly milkman, local newsagent et al instead.
I am adding in the comment made by @thesmallplaces on the UK Human Rights blog post about this, because I think it raises some really important points and in an excellent way – so none of these are my words that follow, but I do agree with an awful lot of it, particularly the fine final paragraph.
I think it’s a real shame that this case has become overshadowed by the antics of John Hemming MP. Although it raised very serious Article 6 issues, every time these issues are raised they get swept aside by a discussion of Hemming’s behaviour. Valid as many of those criticisms are, this misses the point entirely. I’m really pleased to see that serious lawyers like Rosalind English and Richard Stein are talking about these issues.
My feeling is that the ECtHR gave a very superficial analysis of the situation. Prior to RP bringing the case in the Court of Appeal, it wasn’t even clear that a person who had been found to lack capacity to litigate had standing to (see paragraph 36 where Sir Nicholas Wall ‘says no more about it’ as neither the OS nor the LA raised a challenge on these grounds). I suppose the ECtHR ruling has at least made clear that people in RP’s position must have standing to apply to the court to displace their litigation friend. But there are several problems here. How is a person who may have borderline capacity, who is unlikely in the extreme to be familiar with CPR 21 or Court of Protection Rule 147, supposed to do so without being able to instruct a solicitor? These are precisely the circumstances which drive people into the arms of McKenzie friends like Hemming in the first place. Secondly, if they do wish to challenge the appointment of a litigation friend in court – is there public funding for them to do so? How are they supposed to secure and fund any expert reports they might need?
The ECtHR placed great store by the OS’s complaints mechanism. There is very little evidence that the complaints mechanism has ever been used in this way. Certainly none of the OS’s annual reports for the last four years suggests that he has withdrawn from a case on the basis of a complaint. The ECtHR also said that RP should have raised her challenge to his appointment earlier. There is very little discussion as to precisely what RP was told about the OS’s appointment at the outset. The role of a litigation friend seems baffling to most people outside the legal world. To be told that somebody has been appointed who will act in your best interests is very different to being told that somebody has been appointed who might argue a case which conflicts entirely with what you want. Surely that latter point is what must be pressed home to a person in order for them to fully understand the significance of being found to lack litigation capacity. Yet neither the CoA nor the ECtHR report that this is what RP was told.
One of the core principles of the MCA is that people should be offered support to promote their capacity in the relevant respect. If you look at the correspondence between RP and her solicitor quote in the CoA ruling, it’s very hard to see how this is geared towards supporting a young mother with learning disabilities who is extremely distressed. For somebody in RP’s position, the first stage should be to provide support for her to understand and make the requisite decisions herself. For people with learning disabilities, it may require skills which mainstream solicitors don’t have – yet there is very little provision of advocacy services or similar which could help people with litigation matters.
There is a wider question about whether it is even appropriate for a person’s ‘objective’ – as opposed to ‘subjective’ – best interests to be represented in court. There are cases where there is a danger that a person might run up excessive costs or settle for trifling amounts without the intervention of litigation friends – they often have a very valuable role in such cases. Likewise in cases where a person’s wishes and preferences cannot be discerned. But in cases like this, or cases in the Court of Protection, where the courts are already bound to give effect to the best interests of the child or the person themselves, what is the danger in pressing as hard as possible for what the person actually wants? To do otherwise distorts the case that is presented before the court so that a person’s rights to self-determination are never fully adversarially tested. What is tested instead, is other people’s views of what they should want.”