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Acting as a Litigation Friend in the Court of Protection – new Guidance now out

Alex has spent a significant part of this year working on guidance commissioned by the Department of Health for IMCAs, RPRs and other advocates (as well as family members and friends of putative ‘P’s) considering acting as litigation friends in the Court of Protection.

The guidance has now been published, and is hosted by the University of Manchester, available here.   As it says in its introduction:

Th[e] Guidance aims to demystify the Court of Protection generally and the role of litigation friend specifically so as to enable more people to consider taking up the role – thereby ensuring the better promotion and protection of the rights of those said to be lacking capacity to take their own decisions.

Because of its scope, it guidance may also serve as a useful (free) overview for others wishing to learn more about the Court of Protection.

The guidance is primarily aimed at proceedings relating to health and welfare, and its chapter headings are as follows:

A:    Overview

B:    An overview of the Court of Protection

C:    Who can be a litigation friend for P in proceedings before the Court of Protection?

D:    Becoming a litigation friend and instructing lawyers

E:    What does a litigation friend do?

F:    When is it appropriate to bring a case to the Court of Protection as litigation friend for P?

G:    How do cases before the Court of Protection proceed?

H:    When would an appointment of a litigation friend come to an end?

I:     Practicalities

J:     Frequently asked questions

K:    Useful sources of information

There are also appendices containing checklists, a template position statement and details of the ‘balance sheet’ approach.

Alex is very grateful indeed to the very many people who took the time to attend workshops and comment upon drafts, and generally – he hopes – to assist in producing a document that will be of actual use!

Re X (2): further amplification of judicial deprivation of liberty process

 On 16th October 2014 Sir James Munby P handed down his second judgment in Re X and others (Deprivation of Liberty) [2014] EWCOP 37.  In this he expanded on the preliminary judgment handed down on 7th August 2014 (Re X and others: Deprivation of Liberty [2014] EWCOP 25).

This new judgment does not answer all the questions which were before the President when he heard this case in June 2014, particularly some relating to the possible extension of urgent authorisations by the court (a further judgment addressing these points is still awaited)  It does however expand upon three questions:

 “(7)      Does P need to be joined to any application to the court seeking authorisation of a deprivation of liberty in order to meet the requirements of Article 5(1) ECHR or Article 6 or both?

(9)        If so, should there be a requirement that P … must have a litigation friend (whether by reference to the requirements of Article 5 ECHR and/or by reference to the requirements of Article 6 ECHR)?

(16)      If P or the detained resident requires a litigation friend, then: (a) Can a litigation friend who does not otherwise have the right to conduct litigation or provide advocacy services provide those services, in other words without instructing legal representatives, by virtue of their acting as litigation friend and without being authorised by the court under the Legal Services Act 2007 to do either or both …?”

The president answered the first question in the negative, using the analogy of wardship proceedings, where wards do not always have to be a party.    Drawing on his conclusions in RC v CC (By Her Litigation Friend the Official Solicitor) and X Local Authority [2014] EWCOP 131, [2014] COPLR 351, namely that the principles of disclosure in the family division also applied in the COP, and the essentially welfare-based nature of COP proceedings, he concluded that there is no distinction to be drawn between the need to join P in a COP case and the need to join a child who is a ward.

Turning to the Convention jurisprudence, the President noted P’s entitlement to the safeguards of Article 5(4) and the UNCRPD, and concluded:

Article 6 requires that P be able to participate in the proceedings in such a way as to enable P to present his case “properly and satisfactorily”: see Airey v Ireland (1979) 2 EHRR 305, para 24. More specifically, referring to Article 5, “it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded ‘the fundamental guarantees of procedure applied in matters of deprivation of liberty’.”: Winterwerp v Netherlands (1979) 2 EHRR 387, para 60. This may require the provision of legal assistance: Megyeri v Germany (1992) 15 EHRR 584, para 23. There is a margin of appreciation (see, for example, Shtukaturov v Russia (2012) 54 EHRR 962, para 68), but this cannot affect the very essence of the rights guaranteed by the Convention. The Strasbourg court has made clear that deprivation of liberty requires thorough scrutiny and that any interference with the rights of persons suffering from mental illness must, because they constitute a particularly vulnerable group, be subject to strict scrutiny. So the process must meet that demanding standard.

14. More generally, P should always be given the opportunity to be joined if he wishes and, whether joined as a party or not, must be given the support necessary to express views about the application and to participate in the proceedings to the extent that they wish. Typically P will also need some form of representation, professional though not necessarily always legal.

15. So long as these demanding standards are met, and in my judgment they can in principle be met without P being joined as a party, there is, as a matter of general principle, no requirement, whether in domestic law or under the Convention, for P to be a party.”

The suggestion that P will “need some form of representation, professional though not necessarily always legal” does not appear in the first Re X judgment.

The President then turned to the question of whether P could be participate and be represented in proceedings in the COP without being a party.  He concluded there is no such objection.  If P is participating other than as a party there is no need for a litigation friend: so P could be represented without one.

If P is a party, then there is no reason in principle why the rules cannot be amended to allow P to act without a litigation friend:

“19. The next question is whether, assuming that P is a party, he is required to act by a litigation friend. The general principle is long-established, and hardly requires citation of authority, that in welfare proceedings, as in any other kind of litigation, a child or incapacitated adult can participate as a party only if represented by a litigation friend. But there are exceptions to this general rule. I mention two, though the first is now only of historical, indeed almost antiquarian, interest. In the days of the Lunacy Act 1890, although a person of unsound mind not so found by inquisition sued, like an infant, by a next friend or guardian ad litem, a lunatic so found by inquisition sued by the committee of his estate: see Daniell’s Chancery Practice pp 118-119, 121. Of more contemporary significance is rule 16.6 of the Family Procedure Rules 2010, replacing rule 9.2A of the Family Proceedings Rules 1991, which permits a child in certain circumstances to conduct proceedings without a children’s guardian or litigation friend.

23. In his submissions, Mr Jonathan Butler helpfully drew attention to the practice in the First-tier Tribunal (Health Education and Social Care Chamber), and previously in the Mental Health Review Tribunal, where the relevant rule provides for the appointment of a legal representative – not a litigation friend – where the patient, a party to the proceedings before the Tribunal, lacks capacity: see AA v Cheshire and Wirral Partnership HNS Foundation Trust and ZZ [2009] UKUT 195 (AAC), [2009] 1 MHLR 308. Mr Butler suggests that the sole question to be asked is whether the requirement for a litigation friend is necessary for P to have a voice within proceedings? The answer, he suggests, and I agree, can in part be found in the decision in that case.

24. These examples demonstrate, in my judgment, that there is no fundamental principle in our domestic law which dictates that P, if a party, must have a litigation friend. The question is ultimately one going to the practice of the particular court or tribunal. Generally speaking, the practice – the rule – has long been that those who lack capacity must have a litigation friend. But that is all.

25.  At present Rule 141(1) requires P, if a party, to have a litigation friend.

26. The requirement to have a litigation friend is compliant with, but not mandated by, the Convention: RP v United Kingdom [2013] 1 FLR 744. The Convention requirement is to ensure that P’s interests are properly represented and that does not, of itself, require the appointment of a litigation friend.

27.  Again, this is a matter which requires consideration by the Committee.”

The President repeated his view that a litigation friend could act without legal representatives but required permission of the court to act as advocate for P.

He concluded:

“36. It is not for me in this judgment to advise the Committee how to proceed. There is, however, one aspect of the matter to which the Committee will, I suggest, need to give careful consideration. It is essential that where the issue concerns P’s deprivation of liberty the Court of Protection’s processes are rigorous, so that the circumstances of the individual case are subjected, as they must be, to the strict scrutiny demanded by the Convention. Both our domestic law and the Convention impose demanding standards. But the need to meet this challenge must not be allowed to lead to a system of technical requirements which may, in the real world, operate to deny P the speedy access to a judicial determination which is the very essence of what is required. To speak plainly, the Committee will have to consider how best to craft a process which, while it meets the demanding requirement of the law, also has regard to the realities consequent upon (a) the legal aid regime and (b) the exposure of a litigation friend to a costs risk. There is no point in a system which requires there to be a litigation friend, let alone which requires the litigation friend to instruct lawyers, if the reality is that there is, because of an absence of legal aid and possible exposure to an adverse costs order, no-one willing and able to accept appointment as litigation friend. Indeed, such a system would be self-defeating. And in this connection it needs to be remembered that the Official Solicitor can never be compelled to accept appointment. Moreover, as I understand it, he is not funded to act as a litigation friend in deprivation of liberty cases, so he is dependent on external funding which in many cases will not be available in the absence of legal aid.

The costs consequences of setting a juggernaut in motion

The consequences of a failure properly to comply with the provisions of the MCA in the safeguarding context have been highlighted in Milton Keynes Council v RR & Ors (Costs Judgment), the sequel to a singularly unfortunate case described in the Thirty Nine Essex Street’s Mental Capacity Law Newsletter here, involving the unlawful removal of an elderly lady from her home and a failure timeously to investigate and (ultimately) to withdraw allegations against her son and her son’s partner.

In departing from the general rules applicable to costs in personal welfare proceedings and awarding the son the entirety of his costs, District Judge Mort did not mince his words.  He considered initial failures to investigate safeguarding alerts to be “deplorable,” the process of removal and the absence of any lawful basis for the same to be “[as] lamentable and inexcusable set of circumstances [as can be imagined],” and was critical of the failure of the Council subsequently to investigate the safeguarding allegations underpinning their tardy application to the CoP before the Council “surprisingly” abandoned them.   In conclusion, he held:

“36. MKC had set a juggernaut in motion by their initial failure to investigate the safeguarding alerts and their decision to remove P from her home in circumstances which were unlawful. This case concerned the very sad and tragic consequences for P which flowed from that decision.

37. I have no difficulty in concluding that MKC’s practice in this case was substandard. It is P’s misfortune to have been the victim of that substandard practice. MKC’s acts and omissions have detrimentally affected both P and her family and changed the course of their lives.

38. In my judgment an award of costs is manifestly justified. I have considered whether a partial costs order is appropriate but have come to the conclusion that this is an exceptional case in which a full costs order is justified.”

The difficulties of responding to safeguarding alerts in the context of adults who lack capacity to take their own decisions are grave; it is, though, of cardinal importance to remember (a) that ‘safeguarding’ provides no additional legal basis upon which actions can be taken by public authorities to intervene in their lives; and (b) the Court of Protection is a court, and ‘safeguarding’ applications to the CoP must be brought after as full and rigorous investigation of whether the allegations underpinning such applications can be made out as is possible in the time available.  It is not surprising that a combination of a failure to bring matters to the CoP in advance of removal and then a failure to analyse timeously and rigorously the basis upon which that removal was said to be justified warranted the costs award made in this case.

Courts Service may have to meet costs of legal representation where no other funding is available

 

The President has just handed down a judgment in a family case, Q v Q  [2014] EWFC 31 which has implications for Court of Protection practitioners as well as for those working in the family courts.

The judgment related to three unrelated cases: Q V Q, where the President had previously handed down a judgment Q  v Q [2014] EWFC 7 ; Re B, which had been heard by HHJ Wildblood (D v K [2014] EWHC 700 (Fam))and a third case, Re C.

All were private law proceedings where the father of child who lived with the mother sought a role in the child’s life. In all three the mother had legal aid and the father did not.

The cases raised problems which pre-dated but were exacerbated by LASPO.  The President summarised the provisions of LASPO and exceptional funding regime; noting that the threshold for exceptional funding had been found too high in Gudanaviciene and others v Director of Legal Aid Casework [2014] EWHC 1840 (Admin)and commented that the very small number of successful applications for exceptional funding suggested that the system was “inadequate” [at para 14].

Q v Q was an application for contact by a father who was a convicted sex offender, where the President had invited the Secretary of State for Justice to intervene and make submissions as to how expenditure for certain activities could be met if the court considered it to be necessary but it was not available from legal aid and in particular if it could be met from the other party’s certificate or from the court [para 23].   The Secretary of State declined to intervene; the father had asked the Public Law Project for assistance with exceptional funding application.  The proceedings had stalled because the father required an interpreter and possibly a translation of documents; there was no funding to bring the experts in the case to court; and the father had to appear as a litigant in person.

In Re B a father applied for contact with his child.  The  mother asserted the father had raped her, necessitating a fact-finding hearing.  As in the other cases the mother had legal aid and the father did not, giving rise to the spectre of the alleged perpetatrator cross examining an alleged victim in person. This would have been prohibited had this been a criminal case: s34 YJCEA 1999 .

Section 31G(6) Matrimonial and Family Proceedings Act 1984 was amended by Schedule 10 Crime and Courts Act 2013  and provides

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to – 
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

HHJ Wildblood found this criteria to be met in January 2014 . Following this the father eventually succeeded in obtaining legal aid after commencing judicial review proceeding sand following the judgment in Gudanaviciene.

Re C again concerned an application for contact by a father where the mother asserted that he had raped her. The father was awaiting trial at the Crown Court.

The President noted at para 43 that:

“The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay. Each of these problems is, of course, exacerbated if the litigant needs a translator to translate documents and an interpreter to interpret what is going on in court.”

By way of setting the scene he referred to the over-riding objective of dealing with cases justly, set out in FPR 1.1  (and at COPR3.1) as well as the requirements of the courts to act consistently with Articles 6 and 8 of the European Convention and the requirement that A6 rights should be effective.   Mantovanelli v France (Application no 21497/93  (1997) 24 EHRR 370) indicated indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which is “likely to have a preponderant influence on the assessment of the facts by [the] court.” (at para 49).

In connection with the need for an interpreter in Q v Q the President noted that HMCTS would provide an interpreter in domestic violence cases or those involving children and commented [at para 53) that where appropriate and if no one else could pay “HMCTS will also, I imagine, pay for the translation of documents needed”, and noted that he had made orders to this effect in this and other cases.

As regards the attendance of the expert the President referred to the requirement that expert evidence should only be obtained when necessary to assist the court in resolving the proceedings ‘justly’ (s 13(6) Children and Families Act 2014).

He said

“56.In principle, the first question in that situation must be, is it, in the view of the court, “necessary”, if the proceedings are to be resolved “justly”, to have the expert in court to answer questions, or will it suffice for the court to be able to read the expert’s report? If the proceedings can be resolved “justly” without requiring the expert’s attendance, then there is no reason why public funds should be spent on something which is, on this hypothesis, unnecessary. If, on the other hand, it is necessary for the expert to attend court to enable the proceedings to be resolved justly – and that must always be a question for determination by the case management judge, not for mere agreement between the parties – then it follows, in my judgment, that the obligation on the State is to provide the necessary funding if a litigant through poverty is unable to pay the cost.

57.In the final analysis, if there is no other properly available public purse, that cost has, in my judgment to be borne by the court, by HMCTS. It is, after all, the court which, in accordance with FPR 1.1, has imposed on it the duty of dealing with the case justly. And, in the final analysis, it is the court which has the duty of ensuring compliance with Articles 6 and 8 in relation to the proceedings before it.”

What if the litigant does not have access to competent legal advice on the difficult questions raised by the allegations against the fathers, raising questions as to whether they are compellable witnesses and the extent to which they could be required to answer – matters the President described as “deep waters”?

The problems from the lack of representation generally were exacerbated by the “acute tensions” where an alleged perpetrator might cross-examine an alleged victim. This had been raise in 2006 in H v L and R [2006] EWHC 3099 (Fam), [2007] 2 FLR 162,

In the President’s view S31G(6) clearly anticipated questions being put by someone other than the judge and he held [at para 79]

“In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.”

Applying this to the cases before him the President noted that the issues in Re B had been resolved. If the father’s application for exceptional funding in Q v Q was not granted the costs of the experts, whose attendance the judge found to be necessary, would have to be met by the court.

With regard to Re C the President concluded:

85. I have however come to two conclusions which I can and ought to set out. The first is that the matters to which I have referred above (in particular those relating to the issues of privilege and related issues) are matters on which the father in Re B, and even more so the father in Re C, desperately needs access to skilled legal advice, both before and during the fact-finding hearing. These are not matters which the judge conducting the fact-finding hearing can determine without the benefit of legal argument on both sides. If the judge is deprived of adversarial argument, and if the father is denied access to legal advice both before and during the hearing, there must, in my judgment, be a very real risk of the father’s rights under Articles 6 and 8 being breached both in the family proceedings and possibly also, in the case of the father in Re C, in the criminal proceedings. I bear in mind, of course, that, as I explained in Re X Children [2007] EWHC 1719 (Fam), [2008] 1 FLR 589, para 51, the admissibility in the criminal proceedings of any admissions made in the family proceedings is in the final analysis a matter for the criminal, not the family, judge. But this does not, in my judgment, meet the difficulty.

86.Linked to this there is, in the case of the father in Re C, a related point made by Ms Bazley. The proper – the fair and just – management of the case requires, in my judgment, that I give directions inter alia requiring the father to respond to the mother’s allegations and to file all the evidence upon which he intends to rely. Ms Bazley submits with some force, and I am inclined to agree, that to require the father to comply with that part of the order without access to proper legal advice is to imperil his rights under Articles 6 and 8.

87.I add only this. If, on the merits, the circumstances in Re B were such as to bring the father’s application within section 10(2)(a) of LASPO, and the LAA has conceded the point, then it might be thought that the father’s claim in Re C is a fortiori.

88.If the father’s application for public funding under LASPO is successful, then all well and good. If it is not, then I will have to consider what, if any, further order to make. I am inclined to think that, for all the reasons already indicated, the father in Re C requires access to legal advice beforehand and representation at the fact-finding hearing to avoid the very real risk of the court being unable to deal with the matter justly and fairly and of his rights under Articles 6 and 8 being breached. I am inclined to think, therefore, that, if he is unable to afford representation and pro bono representation is not available, and if there is no other properly available public purse, the cost will have to be borne by HMCTS.”

The President emphasized that directions that HMCTs should meet the cost of certain activities should only be met as a last resort and then only following consultation with a HCJ or designated family judge. Such directions may or may not be appropriate in cases which involve allegations of either serious non-sexual assault or of sexual assaults of a less serious nature.

Comment:  The President concluded that the Ministry of Justice, the LAA and the Courts Service “may wish to consider the implications” of his judgment.  It is likely that this will have far-reaching implications in the most extreme cases and no doubt will be considered by practitioners involved in other cases where the facts are different but where the lack of funding- including even exceptional funding- gives rise to a “very real risk” that the Court cannot deal with the matter fairly.   In the Court of Protection context the issue of funding for expert evidence is a familiar one, and is also affected by the decision of the Court of Appeal in JG v The Lord Chancellor and others: [2014] EWCA Civ 656.

 

 

 

Government to appeal against striking down of residence test

The Government has said that it will appeal against the decision yesterday to strike down its attempt to introduce a residence test for legal aid.

Ruling on a challenge to the test brought by the Public Law Project, in which the Children’s Commissioner intervened, the Administrative Court unanimously concluded yesterday that the draft regulations currently before parliament could not be enacted by secondary legislation.  The court further held that the discrimination against those who could not satisfy the residence test could not be justified solely on the grounds of saving money.