View source for ICLR (2020) WLR(D) 57

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Family Division

In re C (Care Proceedings: Lay Advocates)

[2019] EWHC 3738 (Fam)

2019 Dec 13

Keehan J
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''Children— Care proceedings— Lay advocates— Expert psychologists recommending appointment of lay advocates to assist parents— Legal Aid Agency and HM Courts and Tribunal Service refusing to provide funding— Whether refusal breaching parents' Convention rights to fair trial— Whether court to appoint lay advocates and order funding— Human Rights Act 1998 (c 42), Sch 1, Pt I, art 6''

In care proceedings in respect of a child aged four months, the mother and father were diagnosed as having global intellectual impairment with significant defects in verbal, perceptual and adaptive reasoning. The assessments of two expert psychologists recommended that lay advocates should be appointed for both parents at the earliest opportunity to support them at all formal meetings, pre-proceedings meetings and all court hearings. Since neither the Legal Aid Agency nor HM Courts and Tribunals Service (“HMCTS”) would agree to fund the costs of the lay advocates a discrete issue arose for determination in regard to the appointment and funding of lay advocates for the parents.

On the issue arising—

Held, order made. On the basis of the experts’ assessments if provision were not made for a lay advocate for each parent there would be a grave risk of a potential breach of their rights under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms and a real likelihood that they would not be able to engage with the proceedings to such a degree that either of them would have a fair hearing. Public authorities, including HMCTS and the courts, were obliged not to act in a way which was incompatible with a person’s rights under the Convention and there was a duty upon them to ensure that a party’s right to a fair trial was not breached. There was no material difference between the services provided by an interpreter, an intermediary or a lay advocate in so far as they each enabled and supported parties and witnesses to communicate and understand proceedings. HMCTS routinely paid for the services of interpreters and intermediaries and there was no principled reason why it should not also pay for the services of lay advocates in an appropriate case. Accordingly, a lay advocate would be appointed for each parent with funding to be provided by HMCTS (paras 20–25).

Laura Summers, solicitor (instructed by Legal Services, A Local Authority) for the local authority.

June Rodgers (instructed by Kundert Solicitors llp) for the mother.

James Lee (instructed by Askews Legal llp) for the father.

James Turner (instructed by Brethertons Solicitors llp) for the child, by the children’s guardian.

Reported by: Jeanette Burn, Barrister

Referenced Legislation

Human Rights Act 1998 (c 42), Sch 1, Pt I, art 6