Representing parents who lack litigation capacity - comments and corrections!

This is a follow up to my last post, prompted by discussions with Unity and Carl Gardner on Twitter and in the comments.  It relates to the EHRC's written submissions for RP v UK.

I'm not sure what the blog etiquette is for when you change your mind; whether one should go back and change the original post, put in a messy strike through and corrections, or just write another post...? In this instance I'm going for the latter since my change-of-heart is less of a neat U-turn than a 20 point turn in a narrow road.  I had written "There are a few passages in the judgment where it appears that RP's solicitor and the OS made decisions on the basis of what they felt were in the best interests of RP's child, rather than RP herself (see paragraphs 77 and 160 of the judgment)." Unity makes this comment:

Para 77 - No real cause for concern. What that appears to document is the Official Solicitor informing RP of their opinion that she has a hopeless case and cannot, therefore, oppose the court for ethical reasons. OS's duty to act in RPs interests is bounded by ethical duties which cannot be overriden, even if this is not what RP wants.

Para 160 indicates that the court concurred with the OS's judgment and hence that he behaved ethically.

I think Unity is correct, and my initial reading was wrong.  On closer reading, I think it looks as if the OS may have made a best interests assessment, but part of that assessment included whether the case had a realistic prospect of success, which in turn required that the OS take a position on how the court was likely to view the best interests of the child.

On the new website for the Official Solicitor, there is an entire page devoted to how he acts on behalf parents who lack litigation capacity.  On this page are some documents setting out his standard instructions, and one relates specifically to how he represents parents during Children Act 1989 proceedings.  It's well worth a read if you're interested in this issue; section 3 describes in some detail the basis for his decisions.  As I had expected it to be (and hence why I was surprised by my initial reading of the judgment), decisions are supposed to be taken in the best interests of the protected party - in this case the parent - and not the child. This is what the OS says he takes into account in determining what is in the best interests of the protected party:

(1) the client's past and present wishes and feelings, the beliefs and values that would be likely to influence his or her conduct of the proceedings if he or she had capacity, and the other factors he or she would be likely to consider if able to do so; 

(2) the need, so far as reasonably practical, to permit and encourage the client to participate, or to improve his or her ability to participate, as fully as possible in decisions relating to the conduct of the proceedings;

(3) the need to respect the emotional bond between parent and child; and 

(4) the fact that the court will view the child’s welfare as the paramount consideration and apply the welfare checklist.

 He then goes on to state:

3.3 In formulating my submissions as guardian ad litem I would wish to present any realistic arguments and relevant evidence that may be available on behalf of (i.e. in support of) the protected party in relation to the issues before the court, whether these are issues of threshold or of welfare. The criterion is whether the point is reasonably arguable, not whether it is likely to succeed at trial. In relation to issues where there are no realistic arguments to be made it will almost always be more appropriate (although not inevitably the case) for me not to oppose, than to make explicit concessions on behalf of the protected party.

Although the EHRC make the point that the OS's decisions should be based purely on the best interests of the protected party and not the child, they don't cite or comment on the OS's own guidance.  And since the EHRC's role is not to take sides in this particular case, they can't be asserting that the OS's guidance was not followed in this instance.  So it may be that they have seen, and tacitly affirm, the OS's guidance, but then it's not really clear then why they are raising this point.  Perhaps it's just a general reminder to the court.  I'm sure, in any event, it's a point the government will bring to the ECtHR's attention!

I don't think that's quite the end of the story though, as it might be possible to argue that sometimes there are best interests grounds for the OS to bring cases even though he regards them as unwinnable.  Perhaps to prevent vulnerable parties seeking support in their cases elsewhere.  It would be a pretty tough case to argue, and in any case would presumably be a matter to be taken up more appropriately in the Court of Protection.  And I certainly don't think you could argue that the sole determinant in the best interests test should be the desires of the protected party; there would be very little point having the OS at all if his instructions simply mirrored their views.  It seems to me that the only really arguable point in this case therefore relates to the mental capacity assessment itself - and whether a mechanism should have existed for RP to challenge the appointment of the OS in the first place.

It's a really tricky issue, and I still don't feel quite comfortable with where I've arrived at on this. I'd be interested in anyone else's views, particularly anyone with experience in the family courts in similar circumstances.  I do feel the points the EHRC raise regarding the availability of community support are valid, and these would indirectly impact upon the winnabiltiy of cases - but the OS cannot be expected to present a case whose winnability depends upon resources that are not in reality available.  Unity is right again when he says "any challenge to the Local Authority's assertion that they would be unable to provide RP with the care necessary to allow her to raise the child is a separate matter which necessarily would have required separate litigation."  This may mean that the ECtHR will consider that there were other avenues available domestically that were not taken up, and will therefore not consider this aspect of the matter.