Brethertons recently represented a child in the case of Re C (Lay Advocates) [2019] EWHC 3738 Fam. This case involved a child that was removed from their parents as the Children’s Services Department felt neither the mother nor the father had capacity to care.
An expert was appointed in the pre-proceedings stage to assess the parent’s cognitive ability, which, recommended that lay advocates should be appointed for both parents at the earliest opportunity. This was to support them at all formal meetings, pre-proceedings meeting and all court hearings.
A separate expert was appointed, during the proceedings stage, to assess the parent’s capacity. This expert agreed with the recommendations of the previous expert in pre-proceedings and confirmed the parents have capacity to conduct litigation provided the following is met:
- They have the support of their solicitor at all formal meetings and all court hearings;
- They have the support of a lay advocate at all formal meetings and all court hearings; and
- The recommendations in the report in relation to how information should be communicated to them is met.
This expert was asked to clarify whether without this the parents would not have capacity. The expert confirmed that they would have difficulties in following and understanding the proceedings but that if their respective solicitors could attend all hearings, and the court could accommodate sufficient breaks, issues could be explained to them by their solicitor.
The Court considered the appointment of a Lay Advocate necessary but would not fund the appointment of one.
The Court was firmly of the view the Legal Aid Agency should do this, however, the Legal Aid Agency did not agree.
The matter was then re-allocated to Mr Justice Keehan who stated that “it is unlawful for a public authority to act in a way which is incompatible with a right under the European Convention on Human Rights and Fundamental Freedoms” and that Art 6(1) of that Act provides “…everyone is entitled to a fair and public hearing…”
Mr Justice Keehan accepted the opinions and the recommendations of the experts in this matter and considered it too much to impose on extremely busy public law solicitors. He also felt it was unlikely they would have the skills to deal with the parents needs whilst in court.
He stated if provision was not made for a lay advocate then there would be a grave risk of a potential breach of their article 6 rights and that they would not be able to engage in proceedings enough to enable a fair hearing.
His judgement concluded “there was no material difference between the services provided by an interpreter, intermediary or a lay advocate insofar as they enable and support parties and witnesses to communicate and understand proceedings. HMCTS routinely pay for intermediaries and interpreters and therefore could see no principled reason why HMCTS should not also pay for the services of lay advocate”.
Brethertons are well known for their work in children and care cases, if you would like to know more please contact me or visit our Care page.