B e f o r e :
MR JUSTICE KEEHAN ____________________
____________________
Miss L Summers (instructed by Local Authority Legal Services) for the Applicant Ms J Rodgers (instructed by Kundert Solicitors LLP) for the 1st Respondent Mr J Lee (instructed by Askews Legal LLP) for the 2nd Respondent Mr J Turner (instructed by Brethertons Solicitors LLP) for the 3rd Respondent Hearing dates: 13th December 2019 ____________________
HTML VERSION OF JUDGMENT ____________________
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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
The Hon. Mr Justice Keehan :
Introduction
These public law proceedings concern one child, C, who was born on 31 July 2019 and is 4 months of age. His parents are M, the first respondent, who is 18 years of age, and F, the second respondent, who is 19 years of age.
These proceedings were commenced by A local authority on 9 August 2019 because it was the view of the Children's Services Department that neither the mother nor the father had the capacity to care for C. He was made the subject of an interim care order on 14 August.
On his discharge from hospital C moved to live with his mother and father at Bonner House, a residential assessment centre. The placement came to an end in early September when:
ii) the mother left the unit a few days later. C has subsequently been cared for by foster carers.
The matter is timetabled through to an issues resolution hearing on 30 January 2020.
On 29 November 2019 HHJ Watson re-allocated the proceedings to me for me to determine a discrete issue in respect of the funding of lay advocates for both parents.
Background
In the pre-proceedings phase of this case the mother and the father underwent cognitive assessments conducted by Dr. Gillett and capacity assessments conducted by Dr. Lockyer.
Dr. Gillett advised that the mother had global intellectual impairment with significant defects in verbal, perceptual and adaptive reasoning. She gave broadly the same opinion in respect of the father. She recommended that lay advocates should be appointed for both parents at the earliest opportunity to support the mother and the father at all formal meetings, pre-proceedings meetings and all court hearings.
Dr. Lockyer agreed. In respect of the mother he advised that:
Further he opined that he:
In respect of the father Dr. Lockyer advised that on:
Accordingly, Dr. Lockyer's assessment that the mother and the father have capacity to conduct this litigation is predicated on the basis that both have:
ii) the support of a lay advocate at all formal meetings and all court hearings (with the same rider as in para (a); and
iii) the implementation of the recommended measures for imparting information to and communicating with them.
Dr. Lockyer was asked to clarify his opinion and recommendations on whether the mother and/or the father would retain capacity without the support of a lay advocate. He responded as follows:
The order of DJ McCabe who made the interim care order, included the following recitals:
On 10 October 2019 the Legal Aid Agency ('LAA') notified the solicitors for the parents that the LAA could not fund lay advocates.
Accordingly, the position was reached where two psychologists recommended the appointment of lay advocates for the parents but neither the LAA nor, apparently, HMCTS would agree to fund the costs of the lay advocates. I am not clear which office or which manager of HMCTS made and/or communicated to the court and/or the parties the decision that HMCTS would not fund lay advocates.
In the circumstances the matter was re-allocated to and listed before me.
Law
The European Convention of Human Rights and Fundamental Freedoms, Art 6(1) provides 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: s.6 of the Human Rights Act 1998 which provides:
ii) (2) Subsection (1) does not apply to an act if–
iii) (3) In this section "public authority" includes–
iv) (4) (repealed)
v) (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
vi) (6) "An act" includes a failure to act but does not include a failure to–
Analysis
I accept the opinions and recommendations of Dr. Gillett and Dr. Lockyer. In respect of Dr. Lockyer's addendum report, however, I consider that imposing the burden on the parent's respective solicitors:
ii) are enabled to communicate their instructions in an accurate and fulsome manner,
is to require too much of extremely busy public law solicitors.
Moreover, with great respect to them, they are unlikely to have the skills and experience to undertake these tasks as effectively and efficiently as a skilled professional. It must be remembered that the mother and the father function at an extremely low level.
On the basis of the experts' assessments of both parents, I take the view that if provision is not made for a lay advocate for each these parents there would be a grave risk of a potential breach of their article 6 rights. Absent the appointment of a lay advocate, there would be a real likelihood that they would not be able to engage with the proceedings to such a degree that neither of them had a fair hearing.
As I have set out above, public authorities, including HMCTS and the courts, are obliged not to act in a way which is incompatible with a person's Convention rights. There is a duty upon both to ensure that a party's right to a fair trial is not breached.
In my judgment that there is no material difference between the services provided by an interpreter, an intermediary or a lay advocate insofar as they each enable and support parties and witnesses to communicate and understand these proceedings. HMCTS routinely pay for the services of interpreters and intermediaries, I cannot see any principled reason why it should not also pay for the services of lay advocates in an appropriate case.
Accordingly, I had enquires made of the relevant Court Service budget holder who agreed to fund the reasonable costs of a lay advocate for both parents.
Conclusion
Accordingly, I will appoint a lay advocate for the mother and a lay advocate for the father. They cost £30 per hour which I consider to be entirely reasonable. I have assessed the likely number of hours of work on this for the lay advocates to be 50 hours.
Further, I will make an order that HMCTS will pay for the costs of a lay advocate for the mother and for the father.