Re P (A Child) (care and placement order proceedings: mental capacity of parent) ; P v Nottingham City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Thorpe |
| Judgment Date | 08 May 2008 |
| Neutral Citation | [2008] EWCA Civ 462 |
| Docket Number | Case No: B4/2007/2168 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 May 2008 |
[2008] EWCA Civ 462
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HER HONOUR JUDGE BUTLER QC
29th August 2007
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall and
Case No: B4/2007/2168
RP was a litigant in person together with AP and Mr John Hemming MP as McKenzie friends
Shona Rogers (instructed by City Council) for the 1st Respondent
Peter Jackson QC and Robin Barda (onstructed by the Official Solicitor) for the 2 nd Respondent
Hearing date: 4th March 2008
Introduction
In my judgment, this is an important case. I say that for three principal reasons. The first is that it gives this court, for the first time, the opportunity to examine the role of the Official Solicitor when giving his consent to act and when acting for a parent in proceedings under Part IV of the Children Act 1989 (the 1989 Act) when that parent is alleged to lack litigation capacity and is said to be a “protected party” within the meaning of the court rules. The second is that it provides the opportunity for this court both carefully to examine and to put into the public domain everything that happened in the case both during the care proceedings under Part IV of the 1989 Act and in the consequential proceedings for a placement order under section 21 of the Adoption and Children Act 2002 (the 2002 Act). Thirdly, since the Family Justice System is frequently criticised for its alleged secrecy —an allegation often combined with suggestions of corruption and malpractice —this case offers an opportunity to demonstrate just how ill-informed those criticisms can be.
The consequence is that this will be a long judgment. I make no apology for that. However, to assist the reader who does not wish to read the whole document from beginning to end, I have divided the judgment into sections as follows: —
Subject matter
1. Introduction (paragraphs 1 to 4).
2. The issues raised in the appeal (paragraphs 5 to 31).
3. Events since my judgment on the application for permission to appeal was handed down on 30 January 2008 (paragraphs 32 to 36).
4. The appellant's argument that she did not know that she was being represented by the Official Solicitor (paragraphs 37 to 79).
5. Mr. Hemming's reply in relation to the entries in the file of the solicitor acting for the appellant (paragraphs 80 to 90).
6. The appointment of the Official Solicitor in this case and the part played in it by a consultant clinical psychologist HJ (paragraphs 91 to 110).
7. The case of Masterman-Lister v Brutton & Co (Nos 1 and 2); Masterman-Lister v Jewell and another [2002] EWCA Civ 1889; [2003] EWCA Civ 70; [2003] 1 WLR 1511 (hereinafter referred to as Masterman-Lister) (paragraphs 111 to 127).
8. Should a family member have been appointed as the appellant's litigation friend? (paragraphs 128 to 133).
9. The position of the Official Solicitor in this and other cases: the interrelationship between ECHR Article 6 and the involvement of the Official Solicitor as the litigation friend of a person who is said to lack the capacity to conduct proceedings (paragraphs 134 to 142).
10. The merits (paragraphs 143 to 163).
11. Postscript (paragraphs 164 to 168).
12. The local authority's request for guidance in relation to parents whom they think may lack the capacity to litigate (paragraphs 169 to 182).
13. Current good practice (paragraph 183).
14. Addendum (paragraphs 185 to 188).
Supplement
15. The Official Solicitor's statement in the case with two annexes.
As is customary in these cases, this judgment will be written anonymously in order to protect the anonymity of the child concerned and to prevent her from being identified. Thus the only location which will be specified, and the only people who will be named, are the following: (1) the judge and the court; (2) the local authority; and (3) counsel and their instructing solicitors appearing in this court, including Mr. John Hemming MP, who acted in this case as one of the mother's McKenzie friends, and whom we permitted to address the court on her behalf. Her other McKenzie friend was her brother, who bears the same surname as the mother and the child, and who will, accordingly, also remain anonymous. However, if, having read this judgment, the appellant wishes the anonymity we have provided her and the child to be removed, we will consider any such application, and the submissions made in relation to it by the other parties to the appeal.
As it was clear that this case raised important issues, we granted permission to appeal at the outset of the hearing. Thus judgment, accordingly, addresses the issues raised on the appeal.
The issues raised in the appeal
I think I can do no better, in introducing the appeal, than to repeat (with some editorial amendments) parts of the judgment which I gave on 30 January 2008 ( [2008] EWCA Civ 15), after hearing the appellant's application for permission to appeal.
The appellant is RP, who was born on 2 February 1985. She is the mother of a female child, whom I will identify by the initials KP, and who was born on 7 May 200RP appeals against care and placement orders made by Her Honour Judge Butler QC sitting in the Nottingham County Court on 29 August 2007.
KP was born prematurely at approximately 27 weeks. The undisputed evidence is that RP was not aware that she was pregnant until she visited her general practitioner very shortly before the birth. After she was born, KP remained in hospital. As the judge stated – and this does not appear to be in dispute —KP “has very many serious medical conditions with which to contend” and requires skilled day to day care and management.
KP's father does not play any part in the proceedings, or in the life of KP. He is, the evidence reveals, now aged 65 or 66, and is Afro-Caribbean in origin. He and RP do not appear to have any form of ongoing sexual relationship, and they do not appear to have cohabited at any stage. RP, it should be said, is white, and KP is thus of mixed heritage.
Care proceedings in relation to KP were instituted by the Nottingham City Council (the local authority) in September 2006, and on 23 November 2006, pursuant to an interim care order, KP was discharged from hospital into the care of foster parents, with whom she has remained. She has thus never been in the sole care of RP.
The judge's judgment, which is extremely short and set out in full at paragraph 145 below, refers to the fact that assessments had been undertaken by the local authority both in relation to RP herself, and in relation to various members of her family, including her parents and her brother, AP. None was, however, deemed to be capable of caring for KP.
In the care proceedings, the judge found that the threshold criteria under section 31 of the 1989 Act were satisfied, and she concluded that it would be in KP's best interests for a care order to be made in favour of the local authority. The local authority's final care plan was for adoption outside the family, although given the likely difficulties in finding adoptive parents for a child with KP's disabilities, the local authority envisaged that she would, for the time being, remain with her present foster carers. However, the local authority had also issued proceedings under the 2002 Act, seeking a placement order under section 21. The application for the placement order was consolidated with the care proceedings, and they were heard together by the judge.
RP was represented before the judge in both the care and the placement order proceedings by the Official Solicitor, who did not oppose the making of the care order, and accepted on RP's behalf that she was not capable of giving consent to the making of a placement order in relation to KP. The order of the court thus records (in this particular respect, in my judgment, inaccurately) that the care and placement orders were made by consent. However, it goes on to record (accurately) that RP's consent to the placement order was dispensed with under section 52(1)(a) of the 2002 Act, the court being satisfied that she was incapable of giving consent to the placement order.
RP appeals to this court on the ground that her rights under ECHR Article 6 have been breached, and that she did not have a fair trial. In her skeleton argument produced for the permission hearing before me, sitting as a single Lord Justice on 16 January 2008, RP, who was in person, wrote:-
I was not allowed to speak at the final hearing to refute any claims made against myself or to provide evidence to support my case, the case was very short and I was basically a spectator. I wanted to present a case & still wish to do so.
My legal representative was changed or 'ordered' to take instructions from an official solicitor (sic), this was based on a psychological report by (HJ). I wish to refute this report in any further granted case I also intend to get my own evaluation report done, as I didn't have an opportunity to refute the report before, as this very report crippled my case and this stopped me from defending myself or instructing my legal team to do so, which stopped me having a “fair trial” which is a human right as specified under Article 6 of the HRA ( Human Rights Act).
Parties in the case gave misleading, exaggerated facts and lies in their reports knowingly, these reports were used as evidence & I did not get the chance to refuted (sic) these during the final hearing, and I wish to argue that point at any new hearing.
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