RP v Nottingham City Council & Anor

A person should not be deprived of the right to conduct litigation unless capacity has been properly assessed by reference to the particular proceedings. The question is whether, with proper explanation and assistance, the person can understand, retain and weigh the information needed to make the relevant decisions and communicate them.

The lawful appointment of a litigation friend for a person lacking that capacity does not of itself infringe European Convention on Human Rights Article 6. The restriction must be lawful, necessary and proportionate, and fairness depends on the facts of the individual case. A litigation friend must act fairly, competently and without conflict, and need not advance an unarguable case.

RP appealed against care and placement orders made by Her Honour Judge Butler QC in the Nottingham County Court on 29 August 2007 concerning her daughter, KP. KP had serious medical needs. The local authority contended that RP could not safely provide the necessary care without continuous support.

A jointly instructed clinical psychologist assessed RP as having a significant learning disability and as lacking capacity to conduct the care and placement proceedings. The Official Solicitor acted as RP’s litigation friend. He placed RP’s wishes before the court but did not oppose the orders.

RP alleged that she had not known of the Official Solicitor’s appointment, that the capacity assessment was unlawful or biased, and that the procedure breached her Article 6 right to a fair hearing. The central issue was whether RP had been lawfully and fairly represented and whether the care and placement orders should stand.

1. Appeal dismissed. Wall LJ, with whom Thorpe LJ agreed, held that the care and placement orders were right and inevitable on the evidence. The threshold under Children Act 1989 section 31 was satisfied. KP’s welfare required the orders, and RP’s consent to the placement order was properly dispensed with under Adoption and Children Act 2002 section 52(1)(a).

2. The governing test of litigation capacity was that in Masterman-Lister. Capacity is specific to the transaction or proceedings in question. The relevant inquiry is whether the party can, with proper explanation from legal advisers and others where needed, understand the issues on which a decision or consent will be required. A person is not incapable merely because an explanation must be simple or because the decision made is imprudent.

3. HJ had applied that test. Her assessment addressed RP’s ability to understand the proceedings, process and retain advice, make informed decisions and instruct solicitors. The court rejected the allegations that the assessment was biased or that HJ was the local authority’s expert. She was jointly instructed under judicial control and was properly qualified.

4. The evidence showed that RP had repeatedly been told of the proposed and actual appointment of the Official Solicitor and of his role. Her assertion that she had not known he represented her was manifestly unsustainable. The Official Solicitor was lawfully appointed and acted properly by recording RP’s wishes while accepting that the evidence did not permit opposition to the orders.

5. Article 6 did not impose a different or higher domestic capacity test. Requiring a person lacking litigation capacity to act through a litigation friend is a lawful limitation on personal conduct of proceedings, provided it is necessary and proportionate. Any alleged breach depends on the individual facts. RP’s case was fairly put and no breach occurred.

6. RP’s relatives were unsuitable litigation friends. A litigation friend must conduct proceedings fairly and competently, rather than merely advocate the protected person’s wishes. The relatives had conflicts because they sought to be assessed as KP’s carers, contrary to RP’s wish to care for KP herself.

Guidance

Wall LJ also gave non-dispositive guidance. Local authorities should identify possible litigation-capacity issues early, preferably using an adult learning-disability team rather than child-protection social workers. Once proceedings begin, the parent’s legal team and litigation friend are responsible for explaining the litigation friend’s role. Local authorities should remain neutral in the adversarial proceedings.

• Court of Appeal (Civil Division): RP’s appeal against the care and placement orders was dismissed. An earlier Court of Appeal decision had directed that the permission application and, if granted, the appeal be heard together: [2008] EWCA Civ 15.

• Nottingham County Court: On 29 August 2007, Her Honour Judge Butler QC made a care order under Children Act 1989 section 31 and a placement order under Adoption and Children Act 2002 section 21. RP’s consent to the placement order was dispensed with under section 52(1)(a).