C (Lay Advocates), Re

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:

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.

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:

“with the benefit of ongoing support from his solicitor a [lay] advocate [the mother] would be considered to have capacity, as defined in the Mental Capacity Act 2015.”

Further he opined that he:

“agreed with the recommendations within Dr. Gillett’s report, namely that [the mother] would require the support of a [lay] advocate over the course of the current proceedings, including at court hearings, in addition to a number of recommended measures for imparting information to and communicating with [the mother]”.

In respect of the father Dr. Lockyer advised that on:

“the basis of an intellectual assessment undertaken in July 2019, [the father] has a significant impairment of intelligence with significant limitations in three of the four domains of intellectual functioning…. with the benefit of ongoing support from his solicitor a [lay] advocate in addition to a number of recommended measures for imparting information to and communicating with [the father] …..he would be considered to have capacity, as determined within the Mental Capacity Act 2005, to provide instructions to his solicitor, in respect of the current proceedings”.

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:

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:

“...I am of the opinion that both would experience difficulties, in terms of following and understanding the evolving Court process at Court hearings or any other meetings relating to the current proceedings, without support. However, the issue of whether an advocate would be necessary to enable their understanding at Court hearings would depend on whether the Court could accommodate sufficient breaks in proceedings when issues arose that either of the parties failed to understand. This measure would enable their Solicitors to explain such matters. Should this be possible, and as long as the recommended measures for imparting information to, and communicating with both parties, which were detailed within Dr Gillett's report, were employed, the respective Solicitors should be able to manage such issues. However, should this not be possible, I am of the opinion that both parties would require the support of an advocate.

With respect to the issue of both parties giving instructions to their Solicitors, I am of the opinion that should the respective Solicitors employ the recommended measures, this should be sufficient to enable both parties to give instructions. However, should this not be possible for whatever reason, both parties would require the support of their respective advocates.”

The order of DJ McCabe who made the interim care order, included the following

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.

The European Convention of Human Rights and Fundamental Freedoms, Art 6(1) provides that:

“ In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

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:

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:

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.

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.