65. In cases involving those with disabilities the court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned (see, for example, Shtukaturov v Russia, Application no 44009/05, § 68, 27 March 2008). This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Article 6(1) of the Convention. In assessing whether or not a particular measure was necessary, the court will take into account all relevant factors, including the nature and complexity of the issue before the domestic courts and what was at stake for the applicant (see, for example, Shtukaturov v Russia, cited above, § 68).
66. It is clear that in the present case the proceedings were of the utmost importance to RP, who stood to lose both custody of and access to her only child. Moreover, while the issue at stake was relatively straightforward – whether or not RP had the skills necessary to enable her successfully to parent KP – the evidence which would have to be considered before the issue could be addressed was not. In particular, the court notes the significant quantity of expert reports, including expert medical and psychiatric reports, parenting assessment reports, and reports from contact sessions and observes the obvious difficulty an applicant with a learning disability would have in understanding both the content of these reports and the implications of the experts’ findings.
67. In light of the above, and bearing in mind the requirement in the UN Convention that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, the court considers that it was not only appropriate but also necessary for theUnited Kingdom to take measures to ensure that RP’s best interests were represented in the childcare proceedings. Indeed, in view of its existing case-law the Court considers that a failure to take measures to protect RP’s interests might in itself have amounted to a violation of Article 6(1)of the Convention (see, mutatis mutandis, T v United Kingdom [GC], Application no 24724/94, §§ 79–89, 16 December 1999).
68. It falls to the court to consider whether the appointment of the Official Solicitor in the present case was proportionate to the legitimate aim pursued or whether it impaired the very essence of RP’s right of access to a court. In making this assessment, the court will bear in mind the margin of appreciation afforded to Contracting States in making the necessary procedural arrangements to protect persons who lack litigation capacity (Shtukaturov v Russia, cited above, § 68).
69. With regard to the appointment of the Official Solicitor, the court observes that he was only invited to act following the commissioning of an expert report by a consultant clinical psychologist. In assessing RP, the psychologist applied the test set out in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2002] EWCA Civ 1889; Masterman-Lister v Jewell and another [2003] EWCA Civ 70, namely whether RP was capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which her consent or decision was likely to be necessary in the course of the proceedings. She concluded that RP would find it very difficult to understand the advice given by her solicitor and would not be able to make informed decisions on the basis of that advice, particularly when it involved anticipating possible outcomes. The psychologist produced two more reports in the course of the proceedings, the second of which contained a further assessment of RP’s litigation capacity. In that report she noted that RP did not have the capacity to give informed consent to a placement order as she could not really understand the proceedings, except at a very basic level. The court is satisfied that the decision to appoint the Official Solicitor was not taken lightly. Rather, it was taken only after RP had been thoroughly assessed by a consultant clinical psychologist and, while there was no formal review procedure, in practice further assessments were made of RP’s litigation capacity in the course of the proceedings.
70. The court considers that in order to safeguard RP’s rights under Article 6(1) of the Convention, it was imperative that a means existed whereby it was possible for her to challenge the Official Solicitor’s appointment or the continuing need for his services. In this regard, the Court observes that the letter and leaflet which the Official Solicitor sent to RP informed her that if she was unhappy with the way her case was being conducted, she could speak to either SC or to the Official Solicitor, or she could contact a Complaint’s Officer. Moreover, in his statement to the Court of Appeal the Official Solicitor indicated that RP could have applied to the court at any time to have him discharged. Alternatively, he indicated that if it had come to his attention that RP was asserting capacity, then he would have invited her to undergo further assessment. While the court observes that these procedures fall short of a formal right of appeal, in view of the finding that RP lacked litigation capacity, it considers that they would have afforded her an appropriate and effective means by which to challenge the appointment or the continued need for the appointment of the Official Solicitor.
71. The court does not consider that it would have been appropriate for the domestic courts to have carried out periodic reviews of RP’s litigation capacity, as such reviews would have caused unnecessary delay and would therefore have been prejudicial to the welfare of KP In any event, as noted above (see paragraph 69), assessments were in fact carried out of RP’s litigation capacity in the course of the proceedings. The court would also reject RP’s assertion that she should have been encouraged to seek separate legal advice at this juncture. In view of the fact that she had been found to lack the capacity to instruct a solicitor the court does not consider that this would have been a necessary or even an effective means by which to protect her interests.
72. As stated in paragraph 61 above, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective and this is particularly so of the right of access to a court in view of the prominent place held in a democratic society by the right to a fair trial (Airey v Ireland, cited above, § 24). Consequently, any means of challenging the appointment of the Official Solicitor, however effective in theory, will only be effective in practice and thus satisfy the requirements of Article 6(1) of the Convention if the fact of his appointment, the implications of his appointment, the existence of a means of challenging his appointment and the procedure for exercising it are clearly explained to the protected person in language appropriate to his or her level of understanding.
73. In this regard, the court recalls that the letter sent to RP indicated that the Official Solicitor would act as her guardian ad litem and would instruct her solicitor for her. It further indicated that SC would tell the Official Solicitor how RP felt about things and that he would consider her wishes and views before he filed a statement on her behalf. He would do his best to protect her interests but also had to bear in mind what was best for KP The leaflet accompanying the letter informed RP that the Official Solicitor made decisions about court cases, such as whether to bring, defend or settle a claim. Under the heading ‘Will the client be consulted’ RP was informed that ‘the instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager’. If she was dissatisfied with the way her case was being conducted, she was informed that she should discuss the matter either with SC or the Official Solicitor’s Office. If she remained dissatisfied she could write to the Complaint’s Officer. While the court accepts that RP might not have fully understood, on the basis of this information alone, that the Official Solicitor could consent to the making of a placement order regardless of her own personal wishes, it cannot ignore the fact that she was at all times represented by SC and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the implications of his appointment. Indeed, in this regard the court recalls that SC’s conduct of the case was commended by the Court of Appeal which found, in its judgment of 8 May 2008, that RP had been fully informed of the involvement of the Official Solicitor and the nature of his role. Nevertheless, she did not seek to complain until ten months after his appointment and two days before the final hearing.
74. Consequently, the court considers that adequate safeguards were in place to ensure that the nature of the proceedings was fully explained to the applicant and, had she sought to challenge the appointment of the Official Solicitor, procedures were in place to enable her to do so (cf. Stanev v Bulgaria, [GC], Application no 36760/06, 17 January 2012, where no direct access to court was open to the applicant to have his status as a partially incapacitated person reviewed by a court).
75. With regard to the role of the Official Solicitor in the legal proceedings, the court recalls that he was to act ‘for the benefit of the protected party’. The court has taken note of RP’s concerns about his focus in the present case on ‘what was best for KP’. However, the court accepts that the best interests of KP were the touchstone by which the domestic courts would assess the case. Thus, in determining whether a case was arguable or not, it was necessary for the Official Solicitor to consider what was in KP’s best interests. Consequently, the court does not consider that the fact the Official Solicitor ‘bore in mind’ what was best for KP in deciding how to act amounted to a violation of RP’s rights under Article 6(1)of the Convention.
76. Moreover, the court does not consider that ‘acting in RP’s best interests’ required the Official Solicitor to advance any argument RP wished. On the contrary, it would not have been in RP’s – or in any party’s – best interests for the Official Solicitor to have delayed proceedings by advancing an unarguable case. Nevertheless, in view of what was at stake for RP, the court considers that in order to safeguard her rights under Article 6(1) of the Convention, it was imperative that her views regarding KP’s future be made known to the domestic court. It is clear that this did, in fact, occur as RP’s views were referenced both by the Official Solicitor in his statement to the court and by RP’s counsel at the hearing itself.
77. Moreover, the court recalls that RP was able to appeal to the Court of Appeal. Although she was not legally represented in the appeal proceedings, this was through choice as she refused the assistance of pro bono counsel which the Official Solicitor had secured for her. Nevertheless, the court notes that in the course of the appeal proceedings she was afforded ample opportunity to put her views before the court, and her arguments were fully addressed in the court’s judgment.
78. Consequently, the court does not consider that the very essence of RP’s right of access to a court was impaired. The court therefore finds that there has been no violation of her rights under Article 6(1) of the Convention.