Walsall Metropolitan Borough Council v Mother & Ors (Lay Advocates; Article 6)

Article 6(1) does not confer an automatic entitlement to legal assistance or a lay advocate in family proceedings. Its civil limb applies only where there is a genuine and serious dispute concerning a civil right or obligation. Even where Article 6(1) applies, assistance is required only where it is indispensable for effective access to the court, assessed in the circumstances of the individual case. A parent who has properly decided not to oppose an order and seeks no contact is not asserting a contentious civil right. A lay advocate is therefore not indispensable merely because an order concerning the parent’s child may be made. Proper professional advice to ensure that such a decision is understood is a separate matter.

The local authority sought a care order concerning a six-month-old child. The father applied for a lay advocate, relying on an earlier Family Division decision and arguing that Article 6 entitled him to such assistance. The application was supported by evidence of cognitive, mental-health and communication vulnerabilities, but the father’s instructions were that he did not oppose the care plan and did not seek contact with the child.

The issue was whether Article 6(1), or the guidance governing lay advocates and intermediaries, required continuing lay-advocate support in those circumstances.

1. Article 6(1). The civil limb requires a genuine and serious “dispute” concerning rights or obligations recognised in domestic law, with “civil” given its autonomous Convention meaning. The dispute may concern the existence, scope or exercise of a right, including factual matters. Article 6(1) contains no automatic right to legal assistance comparable to Article 6(3(c)) in criminal proceedings.
2. Legal assistance. Under Airey v Ireland, assistance may be required where it is indispensable for effective access to the court, including because representation is compulsory or because the procedure or case is complex. The assessment is practical and effective and takes account of all the circumstances, as illustrated by McVicar v the United Kingdom and P, C and S v the United Kingdom.
3. Application. The father was not contesting the making or terms of the order. He asserted no Article 8 family-life claim and sought no form of contact. There was consequently no “dispute” engaging Article 6(1). Even if Article 6 applied theoretically, a lay advocate was not indispensable to effective access to the court because the father was not advancing a case.
4. Earlier guidance. Re C (Lay Advocates) had to be read in the light of the President’s Guidance on lay advocates, intermediaries and cognitive assessments, which treated lay advocates as being on the same footing as intermediaries. The earlier approach was overtaken to that extent.
5. The father nevertheless required appropriate professional assistance to ensure that his potentially life-changing decision was made with advice he properly understood. That did not create an Article 6 entitlement to continuing lay-advocate support. The application was refused.