RP v Nottingham City Council & Anor

In my judgment, this is an important case. I say that for three principal reasons. The first is that it gives this court, for the first time, the opportunity to examine the role of the Official Solicitor when giving his consent to act and when acting for a parent in proceedings under Part IV of the Children Act 1989 (the 1989 Act) when that parent is alleged to lack litigation capacity and is said to be a “protected party” within the meaning of the court rules. The second is that it provides the opportunity for this court both carefully to examine and to put into the public domain everything that happened in the case both during the care proceedings under Part IV of the 1989 Act and in the consequential proceedings for a placement order under section 21 of the Adoption and Children Act 2002 (the 2002 Act). Thirdly, since the Family Justice System is frequently criticised for its alleged secrecy - an allegation often combined with suggestions of corruption and malpractice - this case offers an opportunity to demonstrate just how ill-informed those criticisms can be.

The consequence is that this will be a long judgment. I make no apology for that. However, to assist the reader who does not wish to read the whole document from beginning to end, I have divided the judgment into sections as follows: -

As is customary in these cases, this judgment will be written anonymously in order to protect the anonymity of the child concerned and to prevent her from being identified. Thus the only location which will be specified, and the only people who will be named, are the following: (1) the judge and the court; (2) the local authority; and (3) counsel and their instructing solicitors appearing in this court, including Mr. John Hemming MP, who acted in this case as one of the mother’s McKenzie friends, and whom we permitted to address the court on her behalf. Her other McKenzie friend was her brother, who bears the same surname as the mother and the child, and who will, accordingly, also remain anonymous. However, if, having read this judgment, the appellant wishes the anonymity we have provided her and the child to be removed, we will consider any such application, and the submissions made in relation to it by the other parties to the appeal.

As it was clear that this case raised important issues, we granted permission to appeal at the outset of the hearing. Thus judgment, accordingly, addresses the issues raised on the appeal.

I think I can do no better, in introducing the appeal, than to repeat (with some editorial amendments) parts of the judgment which I gave on 30 January 2008 ([2008] EWCA Civ 15), after hearing the appellant’s application for permission to appeal.

The appellant is RP, who was born on 2 February 1985. She is the mother of a female child, whom I will identify by the initials KP, and who was born on 7 May 2006. RP appeals against care and placement orders made by Her Honour Judge Butler QC sitting in the Nottingham County Court on 29 August 2007.

KP was born prematurely at approximately 27 weeks. The undisputed evidence is that RP was not aware that she was pregnant until she visited her general practitioner very shortly before the birth. After she was born, KP remained in hospital. As the judge stated – and this does not appear to be in dispute - KP "has very many serious medical conditions with which to contend" and requires skilled day to day care and management.

KP’s father does not play any part in the proceedings, or in the life of KP. He is, the evidence reveals, now aged 65 or 66, and is Afro-Caribbean in origin. He and RP do not appear to have any form of ongoing sexual relationship, and they do not appear to have cohabited at any stage. RP, it should be said, is white, and KP is thus of mixed heritage.

Care proceedings in relation to KP were instituted by the Nottingham City Council (the local authority) in September 2006, and on 23 November 2006, pursuant to an interim care order, KP was discharged from hospital into the care of foster parents, with whom she has remained. She has thus never been in the sole care of RP.

The judge's judgment, which is extremely short and set out in full at paragraph 145 below, refers to the fact that assessments had been undertaken by the local authority both in relation to RP herself, and in relation to various members of her family, including her parents and her brother, AP. None was, however, deemed to be capable of caring for KP.

In the care proceedings, the judge found that the threshold criteria under section 31 of the 1989 Act were satisfied, and she concluded that it would be in KP's best interests for a care order to be made in favour of the local authority. The local authority's final care plan was for adoption outside the family, although given the likely difficulties in finding adoptive parents for a child with KP's disabilities, the local authority envisaged that she would, for the time being, remain with her present foster carers. However, the local authority had also issued proceedings under the 2002 Act, seeking a placement order under section 21. The application for the placement order was consolidated with the care proceedings, and they were heard together by the judge.

RP was represented before the judge in both the care and the placement order proceedings by the Official Solicitor, who did not oppose the making of the care order, and accepted on RP’s behalf that she was not capable of giving consent to the making of a placement order in relation to KP. The order of the court thus records (in this particular respect, in my judgment, inaccurately) that the care and placement orders were made by consent. However, it goes on to record (accurately) that RP's consent to the placement order was dispensed with under section 52(1)(a) of the 2002 Act, the court being satisfied that she was incapable of giving consent to the placement order.

RP appeals to this court on the ground that her rights under ECHR Article 6 have been breached, and that she did not have a fair trial. In her skeleton argument produced for the permission hearing before me, sitting as a single Lord Justice on 16 January 2008, RP, who was in person, wrote:-

HJ is a consultant clinical psychologist. On 19 September 2006, the parties to the care proceedings were given permission by a district judge to disclose the case papers to HJ in order for her to prepare a report upon RP's competence to instruct her solicitor. According to the order, RP's solicitor was to act as the lead solicitor, and a joint letter of instruction was to be filed by 26 September. HJ's report was to be filed by 27 October 2006.

HJ duly interviewed RP and reported on 23 October 2006. Her conclusion, expressed in paragraph 3.1 of her report, was in the following terms:-

On 7 November 2006, a district judge, in the care proceedings, directed that the documentation in the case be released to the Official Solicitor, and that the Official Solicitor be invited to act on behalf of RP. On the same occasion, the district judge gave the parties permission to seek a psychiatric report on RP from a consultant psychiatrist, Dr. O, with once again RP's solicitors taking the lead and a joint letter of instruction being filed. Dr. O responded by letter on 13 December 2006.

The Official Solicitor filed his consent to act in the care proceedings on 6 December 2006, and on 19 December 2006, the district judge gave further directions in those proceedings. These related in particular to the proposed teaching methods to be implemented in the parenting assessment of RP. Amongst other directions however, the Official Solicitor was ordered to file his statement by 4.00pm on 4 May 2007. The care proceedings were then listed for final hearing on 30 May 2007, with a time estimate of three days.

On 24 April 2007, the final hearing fixed for 30 May 2007 was vacated, and an order made for consolidation of the care proceedings with the application for a placement order in relation to KP under the 2002 Act, which the local authority had by then made. The Official Solicitor was invited to act for RP in the placement order proceedings, and directed to file statements in both sets of proceedings by 15 August (the care proceedings) and 22 August (the placement proceedings). The consolidated cases were then listed for hearing on 29-31 August 2007.

The Official Solicitor's statement in both sets of proceedings is dated 17 August 2007. It sets out the steps he had taken in the proceedings. It records that he had continued to use the services of the solicitor originally instructed by RP and that the solicitor in question had spoken to and met RP on a number of occasions. He then records RP's beliefs; (1) that she would be able to provide appropriate care for KP; and (2) that she had developed the skills necessary to parent KP. He also records her belief that KP should be returned to her care, but that if she was not able to care for KP, that she would want KP to be cared for by family members. The Official Solicitor then goes on to state:

Having considered all the evidence, however, the Official Solicitor, in the exercise of what he described as his "duty to conduct this case on (RP's) behalf and in her best interests", concluded; (1) that the threshold criteria under section 31 of the 1989 Act were satisfied; (2) that he could not oppose a care order being made in relation to KP; (3) that RP was not in a position to consent or refuse her consent to the placement order; and (4) that he could not oppose the local authority's application for such an order.

In this court, RP’s case, as advanced by her, by her brother and Mr. John Hemming MP as her two McKenzie friends, was that she had been unaware that she was being represented by the Official Solicitor until after the placement order had been made. A number of further arguments were advanced by her and on her behalf. As I recorded them in my 30 January 2008 judgment, they were as follows:-

At the hearing of the appeal on 4 March 2008, Mr. Hemming accepted that I had accurately recorded and summarised the arguments advanced on RP’s behalf, as set out in paragraph 21 above. I will, accordingly, examine them later in this judgment.

On 8 January 2008, the Official Solicitor wrote to this court – a letter which was copied to RP. In it, the Official Solicitor made it clear that the application for permission to appeal was not being brought by him in his capacity as RP's litigation friend, and that he had only become aware of the application as a result of his continued involvement in the county court proceedings (as to which, see below).

Having set out a history of the proceedings, the Official Solicitor referred to an application made by RP in the Nottingham County Court pursuant to section 24(2)(a) of the 2002 Act for leave (the word used in the Act) to apply to revoke the placement order. That application had come before HH Judge Jenkins on 2 January 2008. He had directed that it be heard on 11 February 2008 with a time estimate of one and a half days. The issues which the court was to address on those dates, according to the Official Solicitor, were the following:-

In paragraph 6 of his order, Judge Jenkins directed that the order and what he described as "this purported application" be sent to this court before 16 January 2008, and, in paragraph 7, this court was invited to inform the Nottingham County Court of the outcome of RP’s application for permission to appeal, so that the judge might consider any further directions that may be appropriate.

In a section of my judgment handed down on 30 January 2008 headed Discussion, I considered RP’s case. It seemed to me that the questions she raised were important. In addition, she had made a number of serious allegations against various of the professionals engaged in the case. At that point, of course, neither the Official Solicitor nor the local authority had had the opportunity to address the points made by RP. Equally, I knew of no consideration by this court of the interrelationship between ECHR Article 6 and the involvement of the Official Solicitor as the litigation friend of a person who is said to lack the capacity to conduct proceedings.

I therefore came to the conclusion that RP’s application provided a useful basis for this court to consider these questions, and I directed that her application for permission to appeal be listed on notice to the Official Solicitor and the local authority, with the appeal to follow if permission was granted. I made enquiries of this listing office, and discovered that the application and the appeal could be heard by the full court on 4 March 2008. That became the date fixed for the hearing.

In my judgment of 30 January 2008, I explained that I was proceeding in this way because the case involved the future care of a very small child, and was thus urgent. I also explained that where cases were listed in this way, it was not always possible to consult the convenience of counsel. I made it clear, however, that it would plainly be of material assistance if RP was able to obtain legal advice and representation prior to 4 March 2008. I pointed out in particular that, given the allegations which she made against her previous solicitor, it would be sensible if she could be advised about the need to waive privilege in relation to the communications which she had had with her solicitor. I also suggested that she should also take the opportunity to clarify whether or not she was seeking permission to appeal against the care order made by the judge.

I also invited the Official Solicitor to provide the court both with a statement of his practice in cases in which he is approached to act for an adult who lacks capacity generally, as well as of his actions in the instant case. I made it clear that the court would also welcome his submissions on the interrelationship between ECHR Article 6 and his representation of a litigant who lacks the capacity to conduct proceedings.

Given the date which had been allocated for the hearing, it was necessary for the hearing in the Nottingham County Court for 11 February to be vacated. However, I did not direct a stay of the placement order pending the hearing in this court. KP's difficulties made it highly unlikely that she could be placed before 4 March 2008, and, in all the circumstances of the case, I did not want the local authority to feel inhibited in its search for prospective adopters, even if the ultimate outcome was that the placement order was set aside.

On this basis, RP’s application for permission to appeal was adjourned to be heard by the full court on 4 March 2008, with the appeal to follow if permission was granted. In addition, I directed that a copy of this judgment be forwarded to the Nottingham County Court for the attention of HH Judge Jenkins, so that he could consider the future conduct of the proceedings in his court.

As my remarks in paragraph 28 above make clear, I had hoped that RP would have obtained the benefit of public funding for the appeal, and that she would be legally represented before us. Regrettably, in my view, she continued to appear in person, albeit with her two McKenzie friends.

My anxieties about RP’s representation were shared by the Official Solicitor, who was naturally concerned about RP’s status to mount the appeal. We were, however, told by leading counsel for the Official Solicitor that RP had been in contact with the Bar’s Pro Bono Unit (the Unit); that the Unit had agreed to assist her, and that it had been able to give her advice. Indeed, as a matter of courtesy, junior counsel instructed by the Unit, Mr. Ian Bugg, was in court throughout the hearing. We are grateful to the Unit and to Mr. Bugg for their efforts on RP’s behalf.

The question of advice to RP was highly material because the Official Solicitor, in response to my judgment of 30 January 2008, had produced a wealth of material. This comprised; (1) the statement of his practice, both before the commencement of the 2005 Act and since its implementation, including the advice which he had sought and obtained from leading counsel; (2) his own file dealing with RP’s case; and (3) the file kept by the solicitor instructed by RP in the care and placement order proceedings, whom the Official Solicitor, in accordance with his normal practice, had retained to act on RP’s behalf.

The solicitor’s file, which occupied two ring binders, was, of course, highly material in the light of the argument advanced by RP that she had no knowledge of the fact that she was being represented by the Official Solicitor. Very properly, in my view, this particular file had not been disclosed to the local authority, given the privileged material it contained. Fortunately, Mr Hemming informed us during the course of argument that RP was willing – as between herself and the Official Solicitor - to waive privilege in relation to it.

Neither the local authority nor the Official Solicitor took any point on RP’s status to mount the appeal, and in these circumstances, I say no more about it.

Before I address the issues identified in the numbered sub-headings in paragraph 21 of this judgment, it seems to me essential to deal with RP’s assertion, which I have also recorded in paragraph 21, and which was repeated before us, that she had been unaware that she was being represented by the Official Solicitor until after the placement order had been made.

In examining this argument, we had the advantage of access to the file maintained by the solicitor instructed by RP prior to the appointment of the Official Solicitor, who, as I have already indicated, was then retained throughout the care and placement order proceedings by the Official Solicitor, and who thus acted for RP throughout. The solicitor in question, who is described on her firm’s notepaper as a “Trainee Solicitor”, has the initials SC, and I will refer to her throughout by those initials.

It will, of course, be understood by lawyers that the communications between RP and SC were covered by legal professional privilege. In the overwhelming majority of cases, the court will not have – and will not be entitled to have - access to this material. However, when a litigant such as RP makes allegations of misconduct against her solicitor, the only way the solicitor can defend herself is to invite the litigant to “waive” the privilege, so that the solicitor can give her account of what was said and done. This is what has happened in this case, although, as a court of review, we did not hear oral evidence either from either RP or SC.

In these unusual circumstances, what I propose to do is to cite extensively from the solicitor’s file. As I have already made clear, this is not material which would normally be in the public domain, but in my judgment fairness to the solicitor in question requires the court to examine the record in order to give her side of the story. I also appreciate that this will be a lengthy process, but one which I believe to be necessary if one is fairly to judge the assertion made by RP that she did not know she was represented by the Official Solicitor.

The file reveals that SC was instructed by RP on 13 September 2006, approximately five days after the institution of the care proceedings in the Family Proceedings Court (FPC). SC promptly obtained public funding for RP, and instructed counsel to appear for her before the justices on 15 September 2006. Counsel who was instructed was called in 1979, was a Recorder and a family law specialist.

There are two important pieces of contemporary information relating to 15 September 2006. The first is a note made by counsel, which, in its material parts reads as follows:

There is also in SC’s file her lengthy attendance note of the hearing on 15 September 2006. After listing the persons in attendance, SC goes on:-

After a further reference in the attendance note to counsel indicating to SC that she did not feel RP would be able to give evidence and lacked the capacity to instruct solicitors, the attendance note continues with the following:-

Slightly later the following observations are recorded: -

Speaking for myself, I have no difficulty of any kind in accepting the accuracy of both counsel’s and SC’s attendance notes of the hearing on 15 September 2006. They are, however, only the first of numerous recorded occasions on which the question of RP’s capacity to give instructions was discussed with her, and the latter is the first of a number of occasions on which both the need for the appointment, and the role, of the Official Solicitor were explained to RP.

There is, however, a further point which needs to be understood and emphasised. Both the relevant rules of court and the leading case of Masterman-Lister make it clear that once either counsel or SC had formed the view that RP might not be able to give them proper instructions, and might be a person under a disability, it was their professional duty to have the question resolved as quickly as possible. This point will become more apparent when I consider the case of Masterman-Lister later in this judgment (see in particular paragraphs 111 to 127 below). For present purposes, it is sufficient to state that in my judgment it would have been a serious breach of her professional and ethical code were SC to have continued to take instructions from a person whom she had reason to believe did not have the capacity to instruct her. She was, accordingly, duty bound to seek a professional opinion on RP’s capacity to do so.

The next reference to RP’s capacity to give instructions, and to the role of the Official Solicitor appear in an attendance note dated 19 September 2006, made when SC attended the Nottingham County Court on the application for the joint instruction of an expert to assess RP’s capacity to give instructions. The note reads as follows:-

The directions being sought from the court were discussed with RP and then duly made with her agreement. There is then this passage:-

This is the second specific reference to the instruction and role of the Official Solicitor. Once again, I have no difficulty in accepting the accuracy of SC’s attendance note. Apart from anything else, she was simply fulfilling her basic professional duty by informing RP of the position.

On 21 September 2006, SC wrote two lengthy letters to RP. One dealt exclusively with the consequences of RP being publicly funded. The other was a report on the two hearings on 15 and 19 September. The second letter reported the order made on 19 September in the following terms:-

On 22 September 2006, SC telephoned the Official Solicitor to enquire about receipt of the latter’s questionnaire on mental capacity. The Official Solicitor’s representative said that she would resend a copy to the firm’s Email address.

On 27 September 2006, the agreed letter of instructions was sent to HJ. I will deal with its terms when I deal with the attack on HJ’s assessment. On 13 October 2006 there is an attendance note of a telephone conversation between SC and RP in which the former reminded the latter of the appointment to see HJ on 16 October. The note continues:-

The appointment with HJ took place on 16 October, albeit not without some difficulty. SC’s attendance note states that she took the opportunity to explain to RP the purpose of HJ and to advise RP “to be as honest as possible”.

HJ’s first report is dated 23 October, and is set out in full at paragraph 109 below. SC read the report and noted its comments and recommendations on 25 October 2006. On 26 October, she wrote to the Official Solicitor advising him of the position, and on the same day she sent a copy of HJ’s report to RP pointing out that HJ recommended that “the Official Solicitor become involved in the proceedings”. She asked RP to make an appointment to come in and see her as soon as possible “so that we may go through the report together and so that I may explain the role of the Official Solicitor”.

RP put in an unexpected appearance on 30 October, when SC made an appointment for RP to come in and see her on the following day so that they could go through HJ’s report. It does not, however, appear that she did so.

On 31 October 2006, the Official Solicitor acknowledged receipt of the report from HJ and confirmed that on the basis of HJ’s opinion he would consent to act for RP. He noted that the next hearing was on 7 November and that it was expected that he would be invited to act on that date.

On 3 November 2006 there was an advocates meeting at which it was agreed that the court should be asked to invite the Official Solicitor to act. On 6 November, SC, over the telephone, communicated to the client the directions which had been agreed, including the automatic renewal of the interim care orders. On 7 November 2006, SC wrote to RP giving her the outcome of the advocates meeting. On the second page of the letter, she wrote:-

Unfortunately, it does not appear that SC and RP met on 10 November, although they did meet on 24 November The next reference to RP and the role of the Official Solicitor occurs on 5 December 2006, when SC sends RP a copy of the order made on 7^th November 2006. She says: -

On 11 December 2006, the Official Solicitor wrote a four page letter to SC setting out his instructions. The letter is date stamped as having been received by SC’s firm on 12 December. Enclosed with it was a letter from the Official Solicitor to RP, also dated 11 December 2006, which the Official Solicitor introduced to SC with the following words: -

The letter from the Official Solicitor to RP is signed by the Official Solicitor’s representative, LM. I propose to set it out in full:-

Also enclosed with the letter was a two page leaflet explaining in simple language who the Official Solicitor is and what he does.

In SC’s file, there is a typed file note, dated 11 December 2006, which reads: -

The file kept by SC itself contains, as the first document in each of the two ring binders, a note giving the Official Solicitor’s understanding that some of SC’s typed attendance notes are not contemporaneous, but were typed up following the proceedings from contemporaneous notes included in the file. Speaking for myself, I have no doubt whatsoever that SC did indeed forward the Official Solicitor’s letter of 11 December to RP, together with the explanatory leaflet. It is, however, equally plain to me that she is in error when she says, in the typed file note, that she did so on 11 December. She plainly did not receive the letters until 12 December (see the date stamp) and she could not, therefore, have sent RP the letter and the leaflet on 11 December. It is, therefore plain to me, as the Note in the file indicates, that the typed attendance note dated 11 December is either not contemporaneous; alternatively, on the basis that it was typed up from a contemporaneous note, SC has made a slip, and written 11 for 12 December.

The file then moves into 2007. There is a great deal of activity on the file, which is relevant to SC’s role in representing RP. I note simply in passing that SC sent RP both of HJ’s further reports dealing (inter alia) with RP’s mental capacity, and the last of which, dated 4 June 2007 states in terms that RP “does not have the capacity to give informed consent to a placement order” and that she “cannot really understand the proceedings except at a very basic level”. In each case SC sought to arrange an appointment with RP to discuss the reports with her. HJ was in no doubt that RP continued to need the assistance of the Official Solicitor.

On 11 June 2007, SC moved firms, and on 7 June her new firm wrote to RP informing her of the move, and that SC would be taking RP’s case with her.

As the local authority’s applications moved towards the final hearing date, it became clear that its final plan for KP was to be stranger adoption. On 20 July, the local authority advised SC that it was assessing KP’s maternal grandparents and RP’s brother as potential carers for KP. It then became necessary for the Official Solicitor to file his statement(s) in the proceedings.

On 31 July 2007 there was a meeting between SC and RP at the former’s offices. The purpose of the meeting was to go through the statement of the social worker and the guardian. Parts of the attendance note for this meeting are relevant to this part of the case, and are in the following terms:-

On 1 August 2007, there was a meeting between SC, RP and the social worker. SC records that RP understood the local authority’s plans for KP. SC informed RP that the Official Solicitor’s statement, to be filed on RP’s behalf, was in the process of being drafted. On 13 August 2007 SC sent relevant documents to the Official Solicitor, and on 15 August SC spoke to RP on the telephone about the Official Solicitor’s statement. SC took the opportunity to repeat to RP that “as she is represented by the Official Solicitor due to the fact that she does not have the capacity to provide instructions, it is the Official Solicitor who will file a statement on behalf of RP”. SC advised RP that part of the statement would consist of RP’s position in relation to KP, and RP confirmed that she felt that she was able to provide appropriate care of KP and that KP should be returned immediately to her care.

In an attendance note dated 15 August 2007, SC recorded that the statement of the Official Solicitor was taking a long time to prepare as she wanted to include the relevant information from all the reports and also to ensure that RP’s position was very clear within the statement.

On 17 August 2007, the Official Solicitor consented to act as litigation friend of RP in the placement order proceedings, and on the same day, the Official Solicitor sent his statement to SC for filing.

On 22 August 2007, the pre-hearing review took place at the Nottingham County Court. RP was present with counsel and with SC. I need to cite various extracts from SC’s attendance note:-

The final paragraph of the attendance note reads as follows: -

On 24 August 2007, SC attempted to make contact with RP. The former’s note reads:-

On 27 August 2007, SC recorded: -

Later the same day there is a further attendance note which reads: -

We then come to the hearing on 29 August 2007. SC has provided a very long attendance note, from which the following extracts seem to me relevant:-

On 13 September 2007, SC wrote to RP. It is a standard summary / debriefing letter. Although not strictly relevant to RP’s state of mind at and before the final hearing, it is, nonetheless, informative. Relevant extracts are: -

Finally, on 17 September 2007, RP called in to SC’s office. The latter’s attendance note reads:-

I have related the number of times RP was informed about the Official Solicitor and the Official Solicitor’s role at such inordinate length for two reasons. The first is the obvious one – namely that, in my judgment, it renders wholly untenable any suggestion that RP did not know that the Official Solicitor was acting on her behalf. The evidence is overwhelmingly to the contrary.

My second purpose, however, is to record Mr. Hemming’s quite extraordinary reaction to SC’s file. After Mr. Peter Jackson QC had taken us through the references to SC’s discussions with RP about the role of the Official Solicitor (perhaps not, in fairness to Mr. Jackson, in quite the same degree of detail as I have done) we invited Mr. Hemming to reply on RP’s behalf. I confess that, no doubt with considerable naivety, I had expected a recognition on his part that, whatever RP’s perspective of the Official Solicitor and his role, the record made by SC would be respected, and that Mr. Hemming would acknowledge that, to some extent at least, RP’s recollection had plainly failed her.

Not a bit of it. So astonished was I by Mr. Hemming’s response that I asked the transcribers to make me a CD Rom of the exchanges which occurred, so that my note of them could be supplemented by the record. In a nutshell, Mr. Hemming’s response was that the evidence contained in SC’s file had been made up: in a word, fabricated.

Mr Hemming seized immediately on the discrepancy in the dates which I have identified in paragraph 64 above, and sought to argue from it that “there is some doubt as to some of the provenance of some of the documents in these files.” I intervened to say: “I believe in calling a spade a spade. Do you think this is a put up job?” Mr Hemming replied: “I think this is a put up job and I have some experience in looking for evidence”.

I then put to Mr. Hemming that he was suggesting that the solicitor had deliberately falsified the file. Mr. Hemming demurred, stating that somebody had put the file note (which I have set out at paragraph 63 above) “and some other associated documents in retrospect – that is what I am alleging”. Mr. Jackson then intervened to enquire if Mr. Hemming was alleging that the letter dated 11 December 2006 from the Official Solicitor to RP, which I have set out at paragraph 60 above was not sent to her. Mr. Hemming replied: “I would think that is the case. Normal practice is to stamp everything that is received in an office”. The following exchange then occurred between Mr. Hemming and myself: -

Over the period during which this judgment has been reserved, I have, of course, carefully considered Mr Hemming’s interventions in this part of the case, and I have re-read the files. Having done so, the feeling of incredulity which I experienced on 4 March has not diminished.

In my judgment, SC’s files demonstrate overwhelmingly four clear facts. They are; (1) that RP was fully aware that SC had doubts about her ability to provide instructions; (2) that RP was fully aware that the Official Solicitor was being approached to act on her behalf; (3) that she was fully aware that the Official Solicitor had been appointed, and was representing her; and (4) that she was fully aware of his role in the proceedings. In short, RP’s assertion that she did not know the Official Solicitor was acting for her is manifestly unsustainable.

Mr. Hemming’s response on RP’s behalf is that this cannot be so because the file has been interfered with. I have, of course, considered that response with care. It is a profoundly serious allegation. However, it is one for which, in my judgment, there is absolutely no evidence. The only query is the mistaken date on the typed attendance note.

I find it not only unacceptable but shocking, that a man in Mr Hemming’s position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.

I can simply see no reason why the file should not be taken at face value as accurately reflecting what occurred. The file simply reflects and records the actions of a solicitor doing her best to represent a disadvantaged client. I can see absolutely no reason why SC should have made false entries on the file and no reason why she should not have forwarded the Official Solicitor’s letter of 11 December and the explanatory leaflet to her client. I ask myself the very simple question: why should she behave in this manifestly unprofessional way? In the crude phrase: what was in it for her? The answer to the second question is, of course, nothing.

In my judgment, any suggestion that SC has interfered with the file can be rejected out of hand. There is no reason to take the file at anything other than face value. I therefore have no hesitation in rejecting RP’s claims on this part of the case.

I now propose to address the five issues identified in paragraph 21 of this judgment. I can, I hope, do so more succinctly, although my criticisms of Mr Hemming in this context will be, if anything, more serious.

The first two issues, it seems to me, have to be taken together, although they have several facets. For ease of reference, I will repeat them.

I propose, in this instance, to begin with the allegations made by Mr Hemming, which represent, in my judgment, a wholesale and entirely unwarranted attack on the professional integrity of HJ for which, once again, there is no evidence whatsoever. In this context it is, I think, appropriate to refer to material which Mr Hemming has posted publicly on his website. This material contains direct references to RP’s case, which he makes no attempt to anonymise. It was made available to us by the Official Solicitor and is, in my judgment, of direct relevance to the issues we have to decide.

The first document is, I think, self-explanatory, and needs no introduction:-

The second document is likewise self-explanatory: -

The third document is a Parliamentary petition which, Mr. Hemming asserts, permits him to identify RP and her family. I make no comment on that, although for the purposes of this judgment, I have retained RP’s anonymity.

It is plain to me from these documents, that in addition to the allegations set out above, Mr. Hemming believes that HJ was in the pay of the local authority and thus was “the local authority’s expert”. For good measure, he asserts that the system is “evil” and that “there does seem to be little concern in the legal profession about the reliability of opinion offered in court.”. The clear implication behind the “witch findings” items on the website set out at paragraph 95 above is that “experts” like HJ are in it for the money; that they are happy to “manufacture ‘evidence’”; and that they are in receipt of “phoney” letters of instruction. The result, Mr Hemming asserts is a “disaster”.

In my judgment, these comments are not only wrong and ill-informed; the simple fact remains that they have no foundation in the evidence presented either to the Nottingham County Court or to this court. That they are made publicly by Mr Hemming once again strikes me as an abuse of his position.

The first point to make, of course, (and I am conscious that I am repeating myself) is that once a legal adviser reasonably entertains a doubt about a client’s capacity to give proper instructions, it is that adviser’s professional duty to satisfy him or herself that the client either has or does not have the capacity to give instructions. In this case, as the extracts from SC’s file already set out make clear, both SC and counsel instructed on behalf of RP reasonably entertained those doubts. There is no suggestion in the evidence that in this regard they were acting in bad faith, nor does Mr. Hemming suggest that they were.

The next step is, of course, for the legal adviser to take expert advice on whether or not the client has the capacity to give instructions. What happened in this case? As counsel advised on 15 September 2006, SC set out to obtain an expert report on her client’s capacity to give instructions and to conduct the litigation.

The position in the Family Justice System is that there is a very strict code for experts and for the instruction of experts. Appendix C to the Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719 at 771 (now replaced by the Public Law Outline (the PLO) and the latest Practice Direction on Experts) set out that code in considerable detail. I give only some of the more obvious points. The duty which the expert owes is to the court, not to the party instructing the expert. The process is subject to judicial control. The expert cannot have a sight of the court papers without the permission of the judge, and the letter of instruction to the expert is a document which, like the expert’s report, has to be disclosed. The Family Justice System has been in the forefront over the past 15 years in attempting to do away with partisan experts who present the point of view sought by the solicitor instructing them. Long gone are the days when a report would be written for one side or the other, and automatically reflect that side’s case or what that side wanted to hear. The clear duty of experts is to provide objective and independent advice to the court based on their expertise, and irrespective of the source of their instructions.

In addition to the matters already listed, the onus is on the judge to ensure that the expert selected by one or more of the parties has the requisite qualifications to provide the advice which is sought. The expert will, invariably in my experience, provide a CV, setting out his or her qualifications and experience, and the expert will not be instructed unless the judge agrees that he or she has the requisite expertise to advise the court on the particular point in question.

In the instant case, SC selected HJ, whose reports appear on the notepaper of an organisation which specialises in the assessment of parents’ needs, and which describes itself as providing “an independent psychological assessment service for parents with a learning disability”. HJ gives her qualifications as follows:-

Nobody has suggested - nor could it be suggested - that HJ was anything other than admirably qualified to make an assessment of RP’s capacity to instruct her solicitor.

HJ was jointly instructed. She was not instructed by the local authority, nor was she the local authority’s expert. The order made by the court on 19 September 2006 reads as follows:-

This is an absolutely standard order, about which there is nothing either unusual or sinister. Joint instructions in these cases are commonplace: the equal sharing of the cost is not only commonplace, but the Legal Services Commission’s way of ensuring that the cost does not fall solely on the publicly funded parent: see, for example, the decision of Bodey J in Sheffield City Council v V (LSC intervening) [2006] EWHC 1861 (Fam) [2007] 1 FLR 279. The open nature of the letter of instruction is to ensure that one party does not seek to take advantage of the others by inappropriate questions. If there is disagreement over the terms of the letter, it is settled by the judge. Crucially, of course, at this point, everybody is agreed that the instruction of the expert is appropriate; but nobody knows what the expert will say.

So far, there can be absolutely no criticism of the process, or the selection of HJ. What were her instructions? She recites them at the outset of her first report: -

In my judgment, no possible criticism can be made of the questions asked, and no suggestion can be made that HJ lacked the expertise to answer them. I will return later (see paragraphs 128 to 133 below) to the question of somebody other than the Official Solicitor – for example a family member - acting as RP’s litigation friend.

Given the criticisms which are made of HJ, I propose to set out the whole of her first report in full. It reads as follows: -

It also needs to be recalled, of course, that HJ was asked to advise on two further occasions in the proceedings. I will discuss those reports when I deal with the merits of RP’s case.

Before setting out the Official Solicitor’s statement of his actions in the instant case, it is necessary to examine HJ’s first report against the leading case of Masterman-Lister. The first criticism made of HJ is that she “wrongly and unlawfully failed properly to address the question of RP’s capacity. The “appearance of bias” is added as a second criticism. In my judgment, neither is sustainable.

It was common ground in the proceedings before this court that Masterman-Lister is the leading case on the subject, and that the common law test of capacity which it identified and promulgated had been incorporated into the 2005 Act. It was also common ground that at the time HJ was advising on RP’s capacity – which was before the implementation of the 2005 Act – the test of a person’s capacity to conduct litigation was that set out by this court in Masterman-Lister .

In his skeleton argument for the Official Solicitor, Mr. Jackson took us carefully through the old common law test of capacity, and provided a wealth of citation from Masterman-Lister. I do not think it necessary to undertake the same exercise in such detail. It is, however, I think, necessary to set out some parts of the judgments in that case in order to see whether or not HJ followed the Masterman-Lister approach.

Masterman-Lister makes it clear that the rationale of the mental capacity rule is that the court is itself concerned not only to protect its own process but to provide protection to all parties. Thus a defendant is entitled to expect that he will not be required to defend proceedings brought by a person of unsound mind acting without a next friend; see paragraph 65 of the judgment of Chadwick LJ ([2003] 1 WLR 1511 at 1536). Equally, it is clear that, every adult must be presumed to be competent until the contrary is proved, and the burden of proof rests upon those asserting incapacity: - see paragraph 17 of the judgment of Kennedy LJ ([2003] 1 WLR 1511 at 1520).

It follows, that the question of litigation capacity is one of considerable importance. When a person is treated as a protected person (previously a patient), he or she is thereby deprived of civil rights, in particular his right to sue or defend in his or her own name. These are important rights, long cherished by English law and now safeguarded by ECHR. Thus the basic right of people to manage their property and affairs for themselves is one with which no lawyer and no court should rush to interfere: see paragraphs 17 and 27 of the judgment of Kennedy LJ ([2003] 1 WLR 1511 at 1520 and 1523-4).

In addition, Masterman-Lister makes it clear that the question of capacity is issue-specific, that is to say the capacity required by the law is the capacity in relation to the transaction which is to be effected. When applied to different issues, the tests may yield different answers: - see paragraphs 58 and 74 of the judgment of Chadwick LJ ([2003] 1 WLR 1511 at 1533-4 and 1538-9).

As to the test of capacity itself, this finds expression in paragraphs 58, 75 and 79 the judgment of Chadwick LJ ([2003] 1 WLR 1511 at 1533, 1539 and 1540-1). At paragraph 58, Chadwick LJ begins his analysis of the authorities with this proposition:-

At paragraph 75, Chadwick LJ says: -

And at paragraph 79, Chadwick LJ says: -

At paragraph 26 of his judgment, ([2003] 1 WLR 1511 at 1523), Kennedy LJ had said much the same: -

The question for this court, accordingly, in relation to HJ is: very simple. Did she apply the test as laid down in Masterman-Lister? I have set out the entirety of her first report at paragraph 109 above. In my judgment, she plainly did. I do not think the question admits of much debate. HJ applied a well-known standardised measure, the Wechsler Adult Intelligence Scale Test, and reported that, on the basis of the test, RP had “a significant learning difficulty”, which was global and affected “all aspects of her functioning”. In relation to RP’s verbal abilities, these were at the 2^nd percentile (which HJ explains, for those not familiar with percentile charts). Her performance abilities were at the 1^st percentile. Her understanding of the proceedings was, accordingly, limited, and in paragraph 3.1 of her report HJ explains that the difficulties RP has in “understanding, processing and recalling” information will render it very difficult for RP to understand advice. She will, moreover, be unable to make informed decisions on the basis of the advice she is given.

I simply do not understand how it can be argued in these circumstances that HJ “wrongly and unlawfully” failed properly to address the question of RP’s capacity. It seems to me that she addressed the question properly, and that she did so in accordance with the guidance set out in Masterman-Lister. I have set out the material. I thus regard the proposition advanced on RP’s behalf as unarguable.

Furthermore, I simply do not understand the allegation of bias. How did HJ demonstrate bias? She was asked her professional opinion in an open and clear way, and she gave it. I regret to say that I suspect that the allegation of bias is made because RP (or those advising her) do not like the conclusion which HJ reached. Once again, however, I have to ask myself the very simple question: why should HJ not do her job properly and conscientiously? As with SC, what was in it for her? If her professional opinion had been that RP had capacity, she would have said so. Her professional opinion was that RP did not. That was an opinion she was plainly entitled to reach on the material before her and the proper application of her expertise to it.

Even more unarguable – indeed it is outrageous - is Mr Hemming’s allegation that HJ was the paid expert of the local authority. She was nothing of the kind. Such an allegation is not only without any evidential foundation of any kind: it is plainly contradicted by the evidence.

Mr. Hemming’s allegation that HJ is part of an “evil” system only warrants comment because it comes from a Member of Parliament, and thus from a person in a responsible public position whom one ought to be able to trust only to make serious accusations when they are based on evidence. I am astonished that somebody in Mr. Hemming’s position should have seen fit to put such a disgraceful allegation into the public domain. I reject it unreservedly.

In my judgment, the evidence plainly contradicts the proposition that RP throughout understood what the case was about. That was not HJ’s view, and that view did not change throughout the proceedings. I will deal with this point again later when I come to discuss RP’s case on the facts.

In my judgment, the arguments advanced by Mr Hemming in this case are ill-informed and tendentious. They are contradicted by the evidence, and must be rejected. I think this most unfortunate. Nobody who works in the Family Justice System regards it as perfect: most of us see it as under-resourced and struggling to deal with the work loads thrust upon it. Constructive criticism, particularly from those in a position to bring about change, is to be welcomed. I am myself in no doubt that the system must change and adapt, and I have spoken many times in public in support of my belief that there needs to be greater transparency in order to combat the partial, tendentious and inaccurate criticisms made against the system. I therefore welcome the opportunity provided by this case to demonstrate that the system has operated properly, and that the criticisms made are unfounded.

In my judgment, the answer to this question is plainly “no”. I will also deal with the suitability to family members to represent RP when I examine her case on the facts. For present purposes, however, I can summarise my views by stating that in my judgment, none of the members of RP’s family was in a position to act as her litigation friend.

This part of the argument, of course, proceeds on the basis that, contrary to RP’s primary case, she lacked capacity and needed a litigation friend. The first and overriding duty of a litigation friend is to conduct the proceedings “fairly and competently”. Making every allowance for the feelings of RP’s parents and brother (the only persons put forward as being suitable) I do not think that any one of these three would have been able to act in this way. A litigation friend is a great deal more than the protected person’s advocate. On the premise that RP required a litigation friend, a number of difficult decisions needed to be taken - and taken objectively. Having carefully read all the evidence in this case, I do not think that any of the family members involved were capable of undertaking this role, nor would the court have permitted them to do so.

There is, of course, no reason in most civil litigation why a lay person – with appropriate legal advice – should not be the litigation friend of the claimant. Obvious examples are personal injury or clinical negligence cases where a family member such as a spouse or a parent frequently so acts. But it is of the essence of such an appointment that the litigation friend has no conflict of interest with the protected party. In the instant case, there were clear conflicts. Both the maternal grandparents and AP put themselves forward to care for KP. Had those applications been pursued, each would have had to become involved in the proceedings, acting directly in opposition to RP’s clear and consistent assertion that she was fully capable of caring for KP. A moment’s thought makes it clear that no family member could advance RP’s case whilst putting themselves forward as carers for KP in opposition to RP’s wishes.

Furthermore, it seems to me obvious that RP’s lack of capacity to give instructions was based on her fundamental learning difficulties. She plainly needed clear and objective professional advice, and advice, moreover that was capable of providing an objective assessment of the welfare of KP. With all respect to them, none of RP’s family members was capable of undertaking that role.

In addition, although it is disputed by AP there are clear historical allegations of intra family violence, and clear evidence of hostility on the part of the family to social services. None of this augurs well for an objective presentation of RP’s case.

I am therefore entirely satisfied that not only was the appointment of the Official Solicitor in this case lawful, but that it was the right – indeed the only proper course.

In compliance with my judgment handed down on 30 January 2008, the Official Solicitor placed before this court a great deal of material relating to his position both in the instant case and generally. As this judgment is already very long, I do not propose to attempt a summary of that material. In my judgment, however, this is material which is important and which should be in the public domain. Accordingly, what I have done is to prepare an edited version of the Official Solicitor’s statement prepared for this court, which I have attached to this judgment as a supplement. This document also exhibits the advice which the Official Solicitor had sought and obtained from leading counsel on his role as litigation friend for parents under the 2002 Act; it also deals with the merits of RP’s case from the Official Solicitor’s perspective.

It should come as no surprise to those with a proper knowledge and understanding of the Family Justice System, that the Official Solicitor has not only thought carefully about his role as a litigation friend under the 2002 Act, and its inter-relationship with ECHR Article 6, but has sought advice on it from leading counsel. I therefore turn to my examination of the application of ECHR to the present case against this background.

As is well known, Article 6(1) of ECHR provides that: “in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

Mr Jackson addressed this issue in his skeleton argument. His submissions were short and, in my judgment, uncontroversial. Certainly, Mr. Hemming addressed no argument to us on the point which contradicted that advanced by Mr. Jackson.

Mr. Jackson submitted that any restriction on the right to conduct proceedings must be prescribed by law, necessary and proportionate. The requirement that a person lacking capacity should have a litigation friend did not, of itself, breach Article 6. In support of this proposition, Mr. Jackson referred us, firstly, to the decision of the European Court of Human Rights (ECtHR) in Stewart-Brady v United Kingdom (1997) 24 EHRR CD38 at CD42. in which a libel claim by a murderer was struck out; and, secondly, to a textbook, Clayton & Tomlinson “The Law on Human Rights” at 11.22-11.23, where there was a reference to the appointment of a litigation friend and the procedure under the CPR. The absence of any comment by the authors, Mr. Jackson submitted, supported the proposition he had advanced.

Mr. Jackson further submitted that it was clearly established in the case law that the right of access to a court was not absolute, but rather was subject to regulation in the interests of all litigants. Nonetheless, the rule was that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right was impaired. For this proposition, Mr. Jackson relied on the well known decision of the ECtHR in of Ashingdane v United Kingdom [1985] 7 EHRR 528 at paragraph 57.

In summary, Mr. Jackson submitted that Article 6 did not import a higher or different standard to that imposed under English domestic law.

Mr Jackson modestly did not refer us to his advice to the Official Solicitor, which was attached to the Official Solicitor’s statement in this appeal, and is likewise part of the Supplement to this judgment. It suffices, I think, for me to say that I agree both with the submissions made by Mr. Jackson in his skeleton argument, and those expressed in the opinion for the Official Solicitor, which I see is dated 13 March 2007. It is equally plain to me that the Official Solicitor, when making his assessment in the instant case, was following Mr. Jackson’s advice.

In these circumstances, it seems to me that any potential breach of Article 6 is an issue of fact, and falls to be determined by reference to individual cases. It therefore seems to me appropriate to examine the Article 6 argument in the context of the facts. I thus turn to examine RP’s case on its merits.

It had initially been my intention to deal with the remaining questions set out in paragraph 21 of this judgment individually. It had also initially been my intention to go through each facet of the local authority’s case, its assessments of RP and KP, the way she put her case, and then to analyse the facts in some detail. However, as this judgment (ignoring the Supplement) has already comfortably exceeded 100 paragraphs. I have come to the conclusion that the better course is to summarise the position by reference to the material available to the parties, including KP’s guardian and, of course, the Official Solicitor.

I should make it clear that in reaching my conclusion on this aspect of the case, I have re-read all the material provided, including all the papers which were before the circuit judge.

I propose to start this process at the end, by reciting the judgment given by the judge. As I stated in paragraph 10 above, it is short. It reads as follows: -

Although the judge refers to the case as being “very difficult” I have reached the very clear conclusion that the outcome was inevitable; that care and placement orders were the right – indeed, the only – course open to the judge in the interests of KP, and that RP’s appeal to this court against the care and placement orders must be dismissed. I reach those conclusions for the reasons which I will endeavour to set out in the following paragraphs.

Before I do so, however, I wish to make one thing quite clear. RP was not, in my judgment, either treated badly or dismissed out of hand by the local authority as a carer for KP. To the contrary, I am satisfied that the local authority, in conformity with its statutory duty, both considered carefully and did what it could to facilitate KP being cared for by her mother.

That this is the case emerges clearly from the documentation. The first care plan is dated 6 September 2006. It states its aim at the outset:-

Prior to the institution of proceedings in the Family Proceedings Court on 8 September 2006, KP had remained in hospital. The chronology maintained by the local authority demonstrated a number of worrying features, and amply justified the local authority’s decision not to allow RP to take KP home. In the case synopsis prepared for the hearing in the FPC, the following was said: -

These anxieties were reflected in the justices’ decision to make an interim care order, and the reasons they gave for doing so. Nonetheless, it is clear to me that the local authority’s care plan remained reunification of mother and child, provided RP could learn how to care properly for KP. This is confirmed by SC’s initial brief to counsel which states: “It is our understanding that the local authority do want to continue to work with RP in the hope that one day KP may be returned her care.”

At the same time, SC recorded that the reason for the care proceedings was RP’s refusal to agree to KP being accommodated, and it is significant that RP’s belief that KP would be all right once she had breathed fresh air was also a comment recorded by SC, who also warned counsel that RP was “intending to bring her close family to court tomorrow. Her father has indicated that he will “punch” the social worker should (KP) be placed in care”. This, in my judgment , is but one of the many instances demonstrating the unsuitability of any of RP’s family members to act as her litigation friend.

The fact that the local authority intended to attempt to reunite mother and child is also, to my mind, demonstrated by the order made on 19 December 2006 by the district judge. He ordered that the local authority was to file a schedule of the proposed teaching methods to be implemented in the parenting assessment of RP. The local authority was also to provide details of the expertise of the assessors, and HJ was to file a report on the proposed teaching methods to be implemented.

On 29 November 2006, shortly after KP had been discharged from hospital to foster care, a local children’s resource centre began an assessment of RP’s capacity “to learn and consistently sustain the necessary child care skills to care for KP”. RP remained of the view throughout that she did not need any help learning how to care for KP. One of the social workers dealing with the case recorded in her statement that RP had made numerous telephone calls to the office, complaining that her baby had been kidnapped. The same worker records: “Continuous accounts of her argumentative, verbally aggressive sometimes racist and threatening telephone calls and comments made during her assessment / observation sessions with KP are recorded within the assessment / observation records”.

On 2 March 2007, HJ filed her second report on the training methods proposed by the local authority and RP’s ability to understand and apply them. HJ’s report, which contained no information after 22 December 2006 approved the working methods proposed. However, HJ entered a serious caveat in paragraph 2.2 of her report: -

We have in our papers the reports giving the outcome of the various assessments made in relation to RP. In particular, there are the following:-

The evidence from all these documents is overwhelming, and is all to the same effect. Whilst RP’s love for her daughter is not doubted, her capacity to care for her independently is seriously deficient. HJ, who reported for a third time in June 2007, is particularly clear. The following extracts from that report give its flavour: -

In its report of 8 June 2007, the local Children’s Resource Centre expressed its inability to be sure that RP would retain or understand information given to her at all times, and concluded:-

This aspect of RP’s behaviour is amply demonstrated in the attendance notes by SC, which I do not propose to rehearse. The local authority’s core assessment report dated 11 July 2007, which is a very thorough piece of work, running to some 26 pages, reaches a similar conclusion:-

KP’s guardian in the proceedings reached the same conclusion. In paragraphs 62 and 63 of her report. She writes:

In my judgment, therefore, the evidence was overwhelmingly in favour of care and placement orders. It follows that the Official Solicitor, acting for RP, was right to concede that the threshold criteria under section 31 of the 1989 Act were satisfied (they self-evidently were) and that a care order was in KP’s best interests. He was equally right to accept the advice of HJ that RP was not in a position to give an informed consent to a placement order. The judge was plainly right to make care and placement orders. Such were plainly in the interests of KP.

It follows, in my judgment, that RP’s rights under ECHR Article 6 have not been breached. The orders made by Judge Butler were plainly right, and inevitable. RP’s case was put before the court by the Official Solicitor, but, whilst it plainly represented RP’s view, it was manifestly unrealistic. In short, KP’s welfare required care and placement orders to be made.

It also follows that the Official Solicitor has, in my judgment, behaved entirely properly in the case. He was lawfully appointed, acted as a litigation friend should act, and could not properly have advanced an unarguable case on RP’s behalf. He did what he properly could in the extracts from his statement which I set out at the beginning of this judgment. It was not for him to do more.

In my judgment, therefore, RP’s appeal must be dismissed.

The only postscript I would wish to add to my substantive judgment on this point is that at the heart of this case, as with so many family cases, lies a human tragedy: the premature and unconsidered birth of a disabled child, and a mother who is plainly incapable of caring for her, however much she may want to. However, the danger of the mother’s approach, reinforced as it has been, in my judgment, by Mr Hemming’s partial and tendentious advice, is that it has been entirely adult focused. Not once in his argument did he mention the welfare of KP. His emphasis, and that of RP was entirely on her rights and the alleged wrongs which had been done to her.

The court’s focus, of course, is on the child, and if one stands back from this case and asks oneself what it is the best interests of KP, the answer is self-evident. Of course, care proceedings and adoption are only to be contemplated when children cannot safely be cared for within their families. What Lord Templeman said in Re KD (A Minor) (Ward: Termination of Access) [1988] AC 806, 812 about ECHR, local authorities and the rights of children to be brought up in their natural families is as valid today as it was when first spoken in 1988. The passage is very familiar to lawyers, but bears repetition. Lord Templeman was comparing the English common law and statute with ECHR Article 8 (the right to respect for private and family life). He said:-

This passage remains a bedrock of family jurisprudence, and I have no doubt that the local authority sought to apply in this case. RP and those advising her deceive themselves if they seek to blame the local authority for what has occurred. I am satisfied that the local authority did its best to reunite RP and KP: sadly, the former simply lacks the capacity to care properly for the latter.

Lest it be thought that this is a soft opinion, I would like to make it as clear as I can that the function of this court is to maintain standards in family justice, and does not hesitate to criticise a local authority which has broken the rules. Indeed, I invite any reader of this judgment to read the forthcoming decision of this court in Re F [2008] EWCA Civ 439, which is being handed down on 1 May 2008, and in which Thorpe LJ, Wilson LJ and I are deeply critical of a local authority.

As to Mr. Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence.

There is no doubt of the impact on care proceedings of the allegation that the parents of the children concerned suffer from learning difficulties or other disabilities. In the instant case, the local authority properly raises the question and seeks guidance on it. It puts the dilemma facing local authorities in the following way:

I propose to take the last of these questions first. The PLO contains a section entitled Pre-Proceedings, and identifies a “Pre-Proceedings Checklist” (PPC) of documents which are to be disclosed from the local authority’s files, and attached to the application for the care or supervision order. Under the heading: “Any relevant Assessment Materials” are included “initial and core assessments”. Under the heading “Other relevant Reports and Records” are included “Single, joint or inter-agency materials” of which health and education documents are examples. Also under this heading are included “Key local authority minutes and records for the child” and “Letters before Proceedings”.

Under the PLO, any invitation to the Official Solicitor to act for any protected persons is to be addressed on day 1, and the question of representation is to be identified by day 6, the date of the first appointment.

Paragraphs 10.2 and 10.3 of the Outline, under the headings “PPC” and “Compliance with PPC” identify the objective of the PPC as being to promote good case preparation, whilst recognising that the available documentation will vary from case to case. However, directions relating to the representation of any person who may be a protected party (including any necessary investigation and evidence to be obtained as to that person’s capacity; and an invitation to the Official Solicitor to act where appropriate) should be given at the first appointment in the proceedings.

It is also to be noted that in the Glossary to the PLO, part of the Local Authority Case Summary includes “a summary of any concerns which the local authority may have about the mental capacity of an adult to care for the child or the capacity of the adult to prepare for the proceedings”.

All this to my mind indicates strongly not only that the question of adult capacity to give instructions needs to be addressed at the earliest opportunity, but that the local authority will be expected, in the pre-proceedings phase of the case, to be on the alert for the possibility that a parent in particular may be a protected person and may not have the capacity to give instructions in the proceedings.

It is, I think, inevitable that in its pre-proceedings work with a child’s family, the local authority will gain information about the capacity of the child’s parents. The critical question is what it does with that information, particularly in a case where the social workers form the view that the parent in question may have learning difficulties.

At this point, in many cases, the local authority will be working with the child’s parents in an attempt to keep the family together. In my judgment, the practical answer in these circumstances is likely to be that the parent in question should be referred to the local authority’s adult learning disability team (or its equivalent) for help and advice. If that team thinks that further investigations are required, it can undertake them: it should, moreover, have the necessary contacts and resources to commission a report so that as soon as the pre-proceedings letter is written, and proceedings are issued, the legal advisers for the parent can be in a position, with public funding, to address the question of a litigation friend. It is, I think, important that judgments on capacity are not made by the social workers from the child protection team.

As to the first question, a litigation friend, whether the Official Solicitor or otherwise, cannot become involved unless and until proceedings are issued. Once proceedings are issued, the question of the parent’s representation becomes and remains a matter for the parent’s legal advisers. Prior to the institution of proceedings, the issue is a different one, and the local authority should feel free to offer whatever advice is appropriate, although, as I have already said, it seems to me that any advice given to the parent in question should come from the local authority’s adult learning disability team.

The question of ensuring that a parent during proceedings is properly informed and understands the role of the litigation friend – and, in particular the role of the Official Solicitor – must be a matter for that parent’s legal team, and for the Official Solicitor himself. During care proceedings, the likelihood is that the local authority (certainly in the shape of the child protection team) and the parent are likely to be in adversarial positions, and the child protection team would, I think, have a clear conflict of interest were it to seek to ensure that the parent in question fully understood the role of his or her litigation friend.

As to the second question, the answer is, I think, “no” except in those unusual cases where a parent becomes incapacitated and a social worker from the adult learning disabilities team becomes involved in order to support the parent.

I fully recognise that this is an area in which local authorities are in a difficult position, as they frequently stand in an adversarial position vis-a-vis parents, yet at the same time they have a duty to those parents to attempt, wherever possible to ensure that they can remain united with their children. On the facts thrown up by the instant case, I am satisfied that the local authority did its duty by facilitating and by not obstructing the instruction of HJ. More than this I do not think it was required to do, and even doing so much has brought upon it the unwarranted accusation of having somehow prevented RP from presenting her case by paying a biased expert to advise that RP was not competent to give instructions.

Once proceedings have been issued, therefore, local authorities must play the case as neutrally as possible. In the pre-proceedings phase, however, the local authority, in my view, is given the task by the PLO of acquiring information which is to be made available when proceedings are issued. In the pre-proceedings phase local authorities should feel free to do whatever is necessary in social work terms to assist parents who may become protected parties. My view, however, is that this is best achieved by members of the adult learning disabilities team who do not have responsibility for the children concerned.

These are, of course, preliminary thoughts in the early days of the PLO. This is, however, an area which the Family Procedure Rules Committee, which is drafting a new set of Family Procedure Rules will keep under review. A principal concern must be to ensure that where a litigation friend is necessary, the delay involved in the appointment of that person is kept to an absolute minimum.

On 1 October 2007 (after the making of the orders against which RP has appealed) the Mental Capacity Act 2005 came into effect. The Act, with its accompanying Code of Practice, statutorily defined capacity in a way that closely reflects the principles articulated in Masterman-Lister. The current law is summarised at paragraphs 46-53 of the Official Solicitor’s statement, which is annexed to this judgment. That statement also contains a model form of certificate as to capacity to conduct proceedings, which usefully sets out the criteria that should be addressed by anyone giving an opinion on capacity.

I agree.

Following normal practice, our judgments in this case were sent to the parties in advance of them being handed down so that the parties could correct any typographical mistakes or other obvious errors, and for a draft order to be agreed. As to the latter, RP and her brother took objection to a proposal by the local authority that their anonymity should be retained. They wished, they said, both for themselves and for their immediate family, to be named fully within the court order, so that the case could be publicly discussed.

We would not wish to inhibit such discussion, but remain concerned for the anonymity of KP. We do not, therefore, propose to alter the manner in which this judgment has been written. However, we wish to make it clear that both RP and AP are at liberty to identify themselves publicly as the mother and uncle of KP, and any other members of their family can, if they wish, identify themselves publicly by reference to their relationship with RP, KP and AP.

We do not propose otherwise to lift the anonymity which we have imposed, and in particular nothing must be published which would identify the location of KP, who must continue to be identified only by the initial K.

The order of the court will thus be that save as is provided in paragraph 186 above, and save for the references to the Nottingham City Council, Mr. John Hemming MP and the Official Solicitor, the names of all the parties to this appeal, including all professional witnesses associated with the proceedings and the child, shall remain anonymised.