C (Lay Advocates), Re

Where a parent with significant cognitive impairment cannot fairly understand or participate in public law proceedings without specialist support, the court must take steps to secure an effective hearing. The support may include a lay advocate, alongside appropriate assistance from the solicitor and other communication measures.

Under Human Rights Act 1998, public authorities, including the courts and HMCTS, must not act incompatibly with Convention rights. Where a lay advocate is necessary to avoid a real risk of an unfair hearing under Article 6, there is no principled distinction between the relevant communication services provided by an interpreter, intermediary or lay advocate. HMCTS may therefore be required to fund the reasonable costs of lay advocates in an appropriate case.

These public law proceedings concerned an infant and his young parents. Psychological and capacity assessments concluded that both parents had significant intellectual impairments and required lay advocates to understand the proceedings, communicate with their solicitors and participate effectively.

The Legal Aid Agency declined to fund lay advocates, and HMCTS appeared unwilling to do so. The discrete issue allocated to the court was whether lay advocates were necessary for the parents’ effective participation and, if so, whether HMCTS should fund them.

1. Necessity of support. The court accepted the opinions of Dr Gillett and Dr Lockyer. Given the parents’ extremely low level of functioning, placing the entire burden on their solicitors to ensure understanding of the evidence and issues, and to obtain accurate and complete instructions, required too much of solicitors and could not provide the equivalent specialist assistance.
2. Article 6. Without a lay advocate for each parent, there was a grave risk of breach of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms. There was a real likelihood that the parents would be unable to engage with the proceedings sufficiently to receive a fair hearing.
3. Public-authority duty. Under section 6 of the Human Rights Act 1998, public authorities, including HMCTS and the courts, must not act incompatibly with Convention rights. They have a duty to ensure that a party’s right to a fair trial is not breached.
4. Funding. There was no material difference, for this purpose, between the services of an interpreter, intermediary and lay advocate: each enables parties or witnesses to communicate and understand the proceedings. Since HMCTS routinely funds interpreters and intermediaries, there was no principled reason why it should not fund lay advocates in an appropriate case.
5. The court therefore appointed a lay advocate for each parent. It assessed the proposed rate of £30 per hour and 50 hours’ work as reasonable, and ordered HMCTS to pay the costs.