In some of his most trenchant comments to date, Sir James Munby P has raised the stakes yet further in the battle (we entirely support) to secure proper funding for representation in proceedings concerning the most vulnerable. In
Re D (A Child) [2014] EWFC 39, the President was concerned with care proceedings in which:
The father lacked capacity to litigate and therefore required a litigation friend. That litigation friend was the Official Solicitor, who was only prepared to act because the father's solicitor and counsel had agreed to act, thus far, pro bono and, indeed, further, the solicitor had agreed to indemnify him against any adverse costs orders; [1]
The mother, although she had learning disabilities, was not a protected party. Because of her ‘personal characteristics, intellectual functioning and limitations which affect [her],’ she was in the view of her counsel (endorsed by the President) ‘wholly unable to represent herself in relation to any aspect of [the] proceedings’;
Neither qualified for legal aid but both lacked the financial resources to pay for legal representation where, as the President put it ‘unthinkable that they should have to face the local authority’s application without proper representation’.
Sir James Munby set out a number of propositions of equal application – we suggest – to 'adult care' proceedings before the Court of Protection where a local authority wishes to remove an adult P from the care of their parents.
He noted, in particular, the decision of the European Court of Human Rights in
RP v United Kingdom [2012] ECHR 1796, drawing attention, especially, to the underlined words in paragraph 67:
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 the United 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 (emphasis added).
The President described the parents’ predicament as 'shocking’:
31. Stripping all this down to essentials, what do the circumstances reveal?
i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?
ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.
iii) The parents lack the financial resources to pay for legal representation.
iv) In these circumstances it is unthinkable that the parents should have to face the local authority's application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.
v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child's welfare. So delay in arranging for the parents' representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.
vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State's – the United Kingdom's – obligations under the Convention? As Baker J said in the passage I have already quoted, "It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.
The President then threw down the gauntlet in no uncertain fashion, in a fashion presaged in his earlier decision in
Q v Q [2014] EWFC 7, and directed a further hearing:
36 ... at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D's own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty's Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.
37. Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty's Courts and Tribunals Service and the Association of Directors of Children's Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.
[1] It should also be noted that the solicitor, Rebecca Stevens of Withy King had spent in excess of 100 hours, all unremunerated, working to resolve the issue of the father's entitlement to legal aid. As the President noted, '
This is devotion to the client far above and far beyond the call of duty’.