Strand, London, WC2A 2LL
B e f o r e :
|In the Matter of D (A Child)|
Ms Sarah Morgan QC and Ms Lucy Sprinz (instructed by Goodman Ray) for the mother
Ms Hayley Griffiths (instructed by the local authority) for Swindon Borough Council
Mr Kambiz Moradifar (instructed by Stone King LLP) for the child D
Hearing date: 8 October 2014
Crown Copyright ©
Sir James Munby, President of the Family Division :
"2 D was born on 11th December 2011 and is therefore now aged 2½. His mother was assessed in 2012 as being on the borderline of a mild learning disability. His father was found to have a more significant cognitive impairment, with an IQ of around 50. In the earlier proceedings described below, a psychological assessment concluded that he lacked capacity to conduct litigation. He has, however, managed to function successfully in his adult life, with some assistance from local authority adult social services. He has worked in the same job for over 12 years and has been contributed towards the financial support of the family.
3 When D was born, the local authority started care proceedings under s.31 of the Children Act 1989. After he was discharged from hospital, D and his parents underwent a 16-week residential placement in a local authority foster placement which was completed successfully. Afterwards, the family moved into a new home with a package of support from the local authority and other agencies. They have extended family on both sides to whom they are close, and a network of friends. They attend a local church. In the summer of 2012, the parents were married.
4 At the final hearing of the care proceedings, the local authority's care plan, dated [28 September 2012] recorded that D had been in his parents' care since birth and was settled, happy and developing. It recommended that D remain in their care under a full care order. That order would be subject to review after a year when it was thought it might be appropriate to move to a supervision order. The plan specified the level of professional support to be provided for the family. It further provided that, if the placement broke down, D would move initially to a foster placement. The local authority would then carry out a viability assessment of his maternal grandparents to see if they were able to look after him, although an assessment carried during the care proceedings had concluded that they were not.
5 The care plan was endorsed by the children's guardian. In her final report, she indicated that, while she supported what she described as the local authority's "courageous attempts" to try to enable D to be looked after his parents, she was "not yet entirely confident that they will be able to provide D with the safe, emotionally attentive care that he will need on a long term basis." She identified "a number of risk factors in D's care circumstances which can be monitored but not removed or effectively counteracted by the considerable support and monitoring resources that have been and are continuing to be provided." She thought that, as D becomes more mobile, these risk factors would be more difficult to manage.
6 On 7th November 2012, District Judge Cronin made a care order on the basis of the local authority's care plan. The order included an undertaking by the local authority not to remove D from the care of his parents without giving 7 days notice in advance, unless an emergency situation should arise."
I should add that the part of the care plan referred to by Baker J in para 4, went on to say that "if … the outcome of the ... assessment is that [the maternal grandparents] are still not viable carers for D, then the local authority will seek permanence for D through adoption."
The present state of the proceedings
The legal aid regime
"(1) Civil legal services provided in relation to –
(b) orders under Part 4 of the 1989 Act (care and supervision);
(c) orders under Part 5 of the 1989 Act (protection of children);
(i) placement orders, recovery orders or adoption orders under Chapter 3 of Part 1 of the 2002 Act (see sections 21, 41 and 46 of that Act);
(2) Civil legal services provided in relation to an order under an enactment made –
(a) as an alternative to an order mentioned in sub-paragraph (1), or
(b) in proceedings heard together with proceedings relating to such an order."
Sections 31 and 39 of the 1989 Act are in Part 4, and section 50 is in Part 5, of the 1989 Act.
"(1) The following forms of civil legal services may be provided without a determination in respect of an individual's financial resources –
(c) legal representation in a special Children Act 1989 case;
(d) legal representation in proceedings related to any proceedings in sub-paragraph (c) to the extent that the individual to whom the legal representation may be provided is an individual to whom legal representation is being provided under sub-paragraph (c) and –
(i) the proceedings are being heard together with those proceedings referred to in sub-paragraph (c); or
(ii) an order is being sought in the proceedings as an alternative to an order in the proceedings referred to in sub-paragraph (c);
(2) In this regulation –
"special Children Act 1989 case" means any matter described in paragraph 1(1)(a), (b) or (c) (care, supervision and protection of children) of Part 1 of Schedule 1 to the Act, to the extent that it relates to any of the following provisions of the Children Act 1989 –
(a) section 25 (use of accommodation for restricting liberty)(12), to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order;
(b) section 31, to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order, that child's parent or other person with parental responsibility for that child;
(c) section 43 (child assessment orders), to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order, that child's parent or other person with parental responsibility for that child;
(d) section 44 (orders for emergency protection of children), to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order, that child's parent or other person with parental responsibility for that child; or
(e) section 45 (duration of emergency protection orders and other supplemental provisions)(13), to the extent that the individual to whom civil legal services may be provided is the child who is or would be the subject of the order, that child's parent or other person with parental responsibility for that child,
but does not include appeals from final orders made under any of those provisions of the Children Act 1989".
Legal aid – the realities
"The personal characteristics, intellectual functioning and limitations arising from learning difficulties which affect each of them [the father and the mother] in different ways … impact profoundly on their ability to represent themselves in proceedings in relation to their son whether at Court hearings or in discussions with professionals associated with or ancillary to those court hearings … It is readily apparent from meeting with [the mother] that she would be wholly unable to represent herself in relation to any aspect of these proceedings."
The point is elaborated by reference to the difficulties facing the mother at the hearing before Judge Marshall on 29 July 2014, when she was unrepresented (she had been represented pro bono at the previous hearings before Baker J and Judge Marshall). Judge Marshall directed that the mother was to file any evidence she wished to rely on by 19 August 2014. The mother was unable to manage that aspect of the case alone, and has not complied with the order. Because the father is a protected party, he and the mother as a matter of law require separate representation.
Baker J's views
"The remedy available to parents in these circumstances is to apply under s.39 of the Children Act for the discharge of the care order. But this remedy is not straightforward. A parent whose child is subject to an application for a care order under s.31 is automatically entitled to legal aid, irrespective of means. Not so a parent whose child is living at home under a care order and who wishes to challenge a local authority's proposal to remove the child. Because the father works, and therefore has a small income, he and the mother are not entitled to legal aid. In the current case, these difficulties are compounded because the father lacks capacity, and it is therefore necessary to invite the Official Solicitor to represent him as litigation friend. The Official Solicitor's resources are under great pressure and as a result there are often delays in his responding to such invitations."
"51 Finally, this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.
52 This problem is compounded in this case because of the learning difficulties of the parties and in particular the father … A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child.
53 On the basis of evidence at present available, it seems plain that the father lacks capacity to conduct litigation and therefore needs to be represented by a litigation friend. Such are the demands on the Official Solicitor's time and resources that there is inevitably a delay in his deciding whether or not to accept instructions, and the fact that the father is not entitled to public funding adds to the complications. In this case, I hope that the Official Solicitor will give urgent consideration to accepting the invitation to act as litigation friend. The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point."
I respectfully agree with every word of that. And everything he said surely applies with equal, if not in fact even greater, force to the predicament of the parents as they now face the local authority's application for a placement order.
The role of the court
"65 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. 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 Art 6(1) of the European 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.
66 It is clear that in the present case the proceedings were of the utmost importance to RP, 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 RP had the skills necessary to enable her successfully to parent KP – 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.
67 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 RP'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 RP's interests might in itself have amounted to a violation of Art 6(1) of the European Convention (emphasis added)."
I draw attention in particular to the words I have emphasised.
The parents' predicament
i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?
ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.
iii) The parents lack the financial resources to pay for legal representation.
iv) In these circumstances it is unthinkable that the parents should have to face the local authority's application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.
v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child's welfare. So delay in arranging for the parents' representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.
vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State's – the United Kingdom's – obligations under the Convention? As Baker J said in the passage I have already quoted, "It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing."
i) I have already noted that those working pro bono for the parents are not merely working for no fee but also having to pay their travel and other expenses out of their own pockets and, in the case of Ms Stevens, agreeing in addition to indemnify the Official Solicitor.
ii) There is also the problem that the parents do not have the money to travel to court unless it is very close to home. The very practical question of how the parents were to pay the cost of coming to court in London for the hearing on 8 October 2014 was resolved only because the local authority agreed, but explicitly without any future commitment, to make an ex gratia payment.
iii) The mother and the father may require the use of an intermediary, not merely in the court setting but also, for example, when meeting professionals out of court. An intermediary at court is paid for by Her Majesty's Courts and Tribunals Service: see Q v Q, Re B (A Child), Re C (A Child)  EWFC 31, para 52. But who is to pay the costs of any intermediary whose use is necessary for the purposes of meetings with professionals out of court?
The way forward
"In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case … where one party is publicly funded … it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters."
I continued (para 19):
"May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated".
The need for such investigation in the present case is, if anything, even more pressing than in Q v Q.
A final observation