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URL: http://www.bailii.org/eu/cases/ECHR/2008/1124.html
Cite as: [2008] ECHR 1124

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FOURTH SECTION

Application no. 38245/08
by R.P. and Others
against the United Kingdom
lodged on 11 August 2008

STATEMENT OF FACTS

THE FACTS

The first applicant, RP, is a British national who was born in 1985 and lives in Nottingham. The second applicant, AP, was born in 1982 and lives in Nottingham. The third applicant, MP, was born in 1950 and lives in Nottingham. The fourth applicant, BP, was born in 1941 and lives in Nottingham. The second, third and fourth applicants are RP’s brother, mother and father.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

RP’s child (‘KP’) was born prematurely on 7 May 2006. RP was not in a relationship with KP’s father and he played no further part in proceedings. As a consequence of her premature birth, KP “had very many serious medical conditions with which to contend”, which required skilled day to day care and management. Social workers were concerned about RP’s parenting skills, particularly in view of KP’s complex health needs. Assessments were carried out of RP and of the second, third and fourth applicants, but none was deemed capable of caring for KP. In September 2006 care proceedings were instituted by the local authority. An interim care order was made in favour of the local authority and on 23 November 2006 KP was discharged from hospital into the care of foster parents.

RP instructed a solicitor who became concerned that she was unable to understand the advice she was being given. With leave of the court the solicitor and local authority jointly instructed a consultant clinical psychologist to assess RP. The psychologist found that she had a significant learning disability and concluded:

“Because of the difficulties (RP) has in understanding, processing and recalling information, I believe that she will find it very difficult to understand the advice given by her solicitor. She will not be able to make informed decisions on the basis of this advice, particularly when this involved anticipating possible outcomes. It would be appropriate for the Official Solicitor to become involved.”

RP believed that she had developed the skills necessary to care for KP. The clinical psychologist prepared further reports in March and June 2007. In her final report she noted:

“1.1 As I have indicated previously RP has a significant learning disability, and she will always need a high level of support in caring for KP. If she were not receiving this support she would pose a high level of risk to KP’s well-being, which is not due to any desire on her part to hurt KP, but to her limitations, which are too extensive to allow her to parent KP successfully on her own.

1.2 If she were receiving a high level of support this risk could be reduced. The level of support which would be needed for this to happen would be for another competent adult to be present at all times, to prompt and assist RP in her care for KP. Essentially this means that RP would need to be living with a partner or family member who could appropriately provide this level of support.

... ... ...

7.1 As I indicated earlier RP could only care for KP if she had a high level of support. I cannot perceive anything in her circumstances which suggests to me that such a support network is available, and without this no progress can be made towards rehabilitation.

... ... ...

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.”

The local authority’s final care plan was therefore for adoption outside the family and it issued proceedings seeking a placement order under section 21 of the Children’s Act 2002. The application for a placement order was consolidated with the care proceedings and listed for hearing before a judge.

The Official Solicitor consented to act in both the care and placement order proceedings. In a statement to the court dated 17 August 2007, the Official Solicitor stated that RP was not in a position to consent or refuse her consent to the placement order and as her litigation friend he was unable to oppose the making of the care order or the placement order. The hearing took place on 29 – 31 August 2007. RP did not give oral evidence as she had agreed with her solicitor that it would not be appropriate but the court was advised of her objections to the making of any order. Following the hearing, the judge dispensed with RP’s consent to the placement order and made a care order and a placement order.

In conversations with her solicitor prior to the hearing RP on a number of occasions had asserted her capacity to instruct a solicitor. Her solicitor did not mention this in correspondence with the Official Solicitor. The Official Solicitor later noted “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”.

RP applied for permission to appeal to the Court of Appeal and also made an application in the County Court to revoke the placement order. The County Court proceedings were adjourned pending the outcome of the proceedings before the Court of Appeal, which took place in March 2008.

In the appeal proceedings the first applicant was assisted by the second applicant and Mr John Hemming MP, who acted as her McKenzie friends. She was also assisted by the Bar’s pro bono unit, which gave her advice. Junior Counsel was present throughout the hearing but did not address the court. Instead, the case was presented by RP and by Mr Hemming. RP alleged that she had not been informed that the Official Solicitor would be representing her until after the hearing; that the involvement of the Official Solicitor was unlawful as she had the capacity to instruct her own solicitor; that the clinical psychologist had failed to apply the correct test in assessing capacity, namely the test identified in the Court of Appeal decision of Masterman-Lister; and finally, that if she lacked capacity, a family member should have been appointed as her litigation friend. The local authority’s case throughout had been based on RP’s inability to care for KP in view of her complex health needs. The last medical assessment of KP, however, was dated February 2007. RP believed that by March 2008 KP was in much better health and her health needs were therefore much less complex than they initially had been.

In a judgment dated 8 May 2008, the court found that RP was fully informed of the involvement of the Official Solicitor and the nature of his role; the clinical psychologist correctly assessed RP’s capacity by reference to the Masterman-Lister test, and RP’s family members would not have been suitable litigation friends as they had also put themselves forward as carers for KP. With regard to the merits of RP’s case, the court found that the local authority had done what it could to facilitate the return of KP to RP’s care, and had not simply dismissed this possibility out of hand. The available evidence indicated, however, that RP’s significant learning disability prevented her from acquiring the necessary skills to provide KP with the care that she needed and this was exacerbated by her increasing unwillingness to co-operate with social workers. The court therefore concluded that the Official Solicitor was right to concede that the care and placement orders were in KP’s best interests and the judge was right to make the orders. Accordingly, there was no violation of RP’s rights under Article 6.

RP applied for leave to appeal to the House of Lords. In her application she submitted a psychiatric report prepared in June 2008 in order to assess her employment prospects. The report indicated that RP had an IQ of 71 and was in the lower ability range. Leave to appeal to the House of Lords was refused on 22 July 2008.

B. Relevant domestic law and practice

Section 31 of the Children Act 1989 provides for the making of care and supervision orders:

“ (1) On the application of any local authority or authorised person, the court may make an order—

(a) placing the child with respect to whom the application is made in the care of a designated local authority; or

(b) putting him under the supervision of a designated local authority or of a probation officer.

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.

The Adoption and Children Act 2002 provides for the making of placement orders:

“21 Placement Orders

(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.

(2) The court may not make a placement order in respect of a child unless—

(a) the child is subject to a care order,

(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied—

(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b) that the parent’s or guardian’s consent should be dispensed with.

... ... ...

52 Parental etc. consent

(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a) the parent or guardian cannot be found or is incapable of giving consent, or

(b) the welfare of the child requires the consent to be dispensed with.”

In England and Wales the Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act. He is currently appointed by the Lord Chancellor under section 90 of the Supreme Court Act 1981.

The Official Solicitor generally becomes involved in litigation because he is invited to do so. It is a matter for his discretion whether he consents to act and he cannot be compelled to act. If he consents to act, he may become involved in proceedings as a “litigation friend”. There is little formal guidance with regard to the role of litigation friend. Rule 21.2 (1) of the Civil Procedure Rules (“CPR”) provides that:

“A protected party must have a litigation friend to conduct proceedings on his behalf.”

Rule 21.1 defines a “protected party” as “a party, or an intended party, who lacks capacity to conduct the proceedings”. “Lacks capacity” is defined by reference to the Mental Capacity Act 2005:

“2 People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

... ... ...

3 Inability to make decisions

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information,

(d) to communicate his decision (whether by talking, using sign language or any other means).

(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a) deciding one way or another, or

(b) failing to make the decision. “

The leading judgment on the issue of litigation capacity is that of the Court of Appeal in Masterman-Lister v Brutton & Co (Nos 1 and 2); Masterman-Lister v Jewell and another http://www.bailii.org/ew/cases/EWCA/Civ/2002/1889.html[2002] EWCA Civ 1889; http://www.bailii.org/ew/cases/EWCA/Civ/2003/70.html[2003] EWCA Civ 70. In his judgment, Chadwick LJ noted:

“The authorities are unanimous in support of two broad propositions. First, that mental capacity required by the law is capacity in relation to the transaction which is to be effected. Second, that what is required is the capacity to understand the nature of the transaction involved when it is explained.

... ... ...

For the purposes of CPR Part 21, the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedure should require the imposition of a next friend or guardian ad litem (or, as such person is now described in the Civil Procedure Rules, a litigation friend).

... ... ...

... a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language; and that he should not be regarded as unable to make a rational decision merely because the decision which he does in fact make is a decision which would not be made by a person of ordinary prudence.”

COMPLAINTS

The applicants complain under Article 6 of the Convention that as a result of the appointment of the Official Solicitor, RP was prevented from presenting her case before the court and challenging the facts submitted by the local authority. In particular, RP had no opportunity to challenge the consultant psychologist’s report which indicated that she lacked the capacity to instruct a solicitor.

The applicants complain under Article 8 of the Convention that the placement order violated their right to respect for their family life. In particular, the local authority’s assessment of RP’s parenting skills was flawed and the appointment of the Official Solicitor was unlawful.

The applicants complain under Article 10 of the Convention that the appointment of the Official Solicitor violated the first applicant’s right to freedom of expression. They further complain under Articles 13 and 14 of the Convention, but do not specify the precise nature of the complaints.

QUESTIONS TO THE PARTIES

Did the appointment of the Official Solicitor give rise to a breach of RP’s procedural rights guaranteed by Article 8 of the Convention?

Did the same circumstances give rise to a breach of Article 6 as regards the fairness of the court proceedings?