ECHR 1796 (Application no. 38245/08)
Practice and procedure - other
This case arose from family proceedings in which the Official Solicitor was appointed to act as litigation friend to a mother who lacked litigation capacity. The points of principle raised upon the application to Strasbourg were identical to those which arise in Court of Protection proceedings, and thus the case merits consideration in some detail.
The mother argued, among other points, that her rights under Article 6 ECHR had been breached because:
- There had been no determination by the court of her litigation capacity – the Official Solicitor had accepted an expert report on the issue, and had not put the matter before the court for resolution.
- The Official Solicitor had taken the view that he could not challenge the local authority’s argument that the mother’s children should be taken into care, as the merits of the mother’s case were too weak. As a result, the outcome she wished for was not argued.
The Court started its examination of the issue by recalling that the right of access to the courts guaranteed by Article 6(1) was not absolute, but may be subject to limitations. Whilst a certain margin of appreciation was left to member states in this regard, the Court recalled that: (1) the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right was impaired; and (2) a limitation would not be compatible with Article 6(1) if it did not pursue a legitimate aim and if there was not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
As regards those with disabilities, the Court recalled that it had permitted 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, 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)" (paragraph 65).
In the instant case, the Court accepted that the proceedings were of the utmost importance to the mother, 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 R.P. had the skills necessary to enable her successfully to parent K.P. - 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" (paragraph 66).
"In light of the above," the Court continued "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 R.P.’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 R.P.’s interests might in itself have amounted to a violation of Article 6 § 1 of the Convention (see, mutatis mutandis, T. v. the United Kingdom [GC], no. 24724/94, §§ 79 - 89, 16 December 1999)" (paragraph 67).
The Court therefore examined the appointment of the OS in the case before it to see whether it was proportionate to the legitimate aim pursued or whether it impaired the very essence of RP’s right of access to a court. It found as follows:
- The OS was only invited to act following the commissioning of expert evidence from a clinical psychologist as to RP’s capacity to conduct the litigation in question, and that, whilst there was no formal review, in practice further assessments were made of her litigation capacity during the course of the proceedings (paragraph 69);
- Whilst there was no formal right of appeal against the appointment of the OS, RP was informed of her ability to contact either her solicitor or the Official Solicitor (or a complaint’s officer) if she was unhappy with the conduct of the litigation; the OS also gave evidence to the domestic courts that "R.P. 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 R.P. was asserting capacity, then he would have invited her to undergo further assessment." These, the Court considered, constituted an "appropriate and effective means by which to challenge the appointment or the continued need for the appointment of the Official Solicitor" (paragraph 70);
- It would not have been appropriate for the domestic courts to conduct periodic reviews of RP’s litigation capacity, as this would have caused unnecessary delay and would have been prejudicial to the welfare of her daughter. There would also have been no purpose served in encouraging her to seek separate legal advice at this juncture (paragraph 71);
- Any means of challenging the appointment of the OS, however effective in theory, would 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 were clearly explained to the protected person in language appropriate to his or her level of understanding. On the facts of the case, her solicitor had taken proper steps to ensure that she was aware of the nature of the involvement of the OS and of his role (and she had only complained some 10 months after his appointment and two days before the final hearing), such that adequate safeguards were in place to explain the nature of proceedings to her and to enable her to challenge the appointment of the OS (paragraphs 72-4);
- As regards the conduct by the OS of the proceedings, the Court noted RP’s concerns that the OS had focussed ‘on what was best’ for RP’s daughter. However, it accepted that the best interests of the daughter were the touchstone by which the domestic courts would assess the case, such that in determining whether a case was arguable or not, it was necessary for the OS to consider what was in K.P.’s best interests. Bearing in mind what was best for the daughter did not therefore constitute a breach of the mother’s Article 6(1) rights (paragraph 76).
Furthermore, and in a passage which will resonate with those appearing before the Court of Protection, the Court noted that it did "not consider that ‘acting in R.P.’s best interests’ required the Official Solicitor to advance any argument R.P. wished. On the contrary, it would not have been in R.P.’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 R.P., the Court considers that in order to safeguard her rights under Article 6 § 1 of the Convention, it was imperative that her views regarding K.P.’s future be made known to the domestic court. It is clear that this did, in fact, occur as R.P.’s views were referenced both by the Official Solicitor in his statement to the court and by R.P.’s counsel at the hearing itself" (paragraph 76).
Noting finally that RP had appealed to the Court of Appeal (refusing the assistance of pro bono Counsel which the OS had secured for her) and that during the course of her appeal she was afforded ample opportunity to put her views before the Court, the Court concluded that the very essence of her right of access to a Court was impaired, and therefore found there to have been no breach of Article 6(1).
The Court further found manifestly ill-founded allegations of breaches of Articles 8 and 13 for reasons which need not trouble us here.
The outcome in this case is perhaps not hugely surprising. If it had been otherwise, the system of representation in England and Wales for those lacking litigation capacity and who do not otherwise have the benefit of a litigation friend would have collapsed. However, three points of significance arise:
- This is only the most recent of the cases involving incapacitated adults discussed in our newsletter in which the Court has construed the ECHR by reference to the UN Convention on the Rights of Disabled Persons;
- The Court placed considerable emphasis upon the steps taken to explain to RP the ways in which she could seek to challenge the appointment of the Official Solicitor; it therefore left open the possibility that a failure on the part of the particular individuals appointed to act on the part of the protected party (whether that be P or another party to the litigation) to convey the necessary information in an appropriate form would give rise to a breach of Article 6(1);
- The endorsement of the proposition that ‘acting in the best interests’ of a protected party does not require advancing every argument that party wishes to be relayed to the Court is of assistance, although it is necessary to ensure that where the protected party has a particularly important stake in the outcome of the proceedings that their views are appropriately conveyed to the Court. This is particularly so where the protected party is P him or herself (rather than, as in RP’s case, a protected party other than the subject of the litigation). In such circumstances, it is suggested that, even if not formally advanced by way of argument to the Court, P’s views must clearly and fully put before the Court so as to comply the duty to safeguard their rights under Article 6(1) ECHR.