Information Note on the Court’s case-law No. 156
October 2012
R.P. and Others v. the United Kingdom - 38245/08
Judgment 9.10.2012 [Section IV]
Article 6
Civil proceedings
Article 6-1
Access to court
Appointment of Official Solicitor to represent mother with learning disabilities in child care proceedings: no violation
Facts – The first applicant was the mother of a premature baby who suffered from a number of serious medical conditions requiring constant care. The local authority commenced care proceedings owing to doubts over the ability of the first applicant, who had learning disabilities, to provide such care. The first applicant instructed lawyers to represent her in those proceedings, but amid serious concerns that she was unable to understand their advice, a consultant clinical psychologist was asked to carry out an assessment to determine whether or not she had capacity to provide instructions. The psychologist concluded that she would find it very difficult to understand the advice given by her lawyers and would not be able to make informed decisions on the basis of that advice. The court then appointed the Official Solicitor* to act as the first applicant’s guardian ad litem and to provide instructions to the first applicant’s lawyer on her behalf. In her application to the European Court, the first applicant complained that the appointment of the Official Solicitor had violated her right of access to a court.
Law – Article 6 § 1: Given the importance of the proceedings to the first applicant – who stood to lose both custody of and access to her only child – and bearing in mind the requirement in the United Nations Convention on the Rights of Persons with Disabilities that State parties provide appropriate accommodation to facilitate disabled persons’ effective role in legal proceedings, measures to ensure that her best interests were represented were not only appropriate but also necessary.
The Court therefore had to consider whether the appointment of the Official Solicitor was proportionate to the legitimate aim pursued or whether it impaired the very essence of the first applicant’s right of access to a court. The decision to appoint the Official Solicitor was not taken lightly but only after the first applicant’s litigation capacity had been thoroughly assessed by a consultant clinical psychologist who had concluded that she would find it very difficult to understand the advice given by her solicitor and would not be able to make informed decisions on the basis of that advice. Although the first applicant did not have a formal right of appeal against the Official Solicitor’s appointment, procedures were in place that would have afforded her an appropriate and effective means by which to challenge it at any time. Periodic court reviews of the first applicant’s litigation capacity would have caused unnecessary delay and been prejudicial to the welfare to the child, so were not appropriate (although assessments were in any event carried out in the course of the proceedings). Further, although the first applicant might not have fully understood that the Official Solicitor could consent to the making of a placement order regardless of her own personal wishes, she was at all times represented by a solicitor and experienced counsel who should have, and by all accounts did, explain to her the exact role of the Official Solicitor and the implications of his appointment. Consequently, adequate safeguards had been in place to ensure that the nature of the proceedings was fully explained to the applicant and, had she sought to challenge the appointment of the Official Solicitor, procedures had been in place to enable her to do so. That conclusion was not affected by the fact that the Official Solicitor had “borne in mind” the child’s best interests in deciding how to act since those interests were the touchstone by which the domestic courts would themselves assess the case. In order to safeguard the first applicant’s rights under Article 6 § 1 the Official Solicitor was not required to advance any argument the first applicant wished, so long as her views regarding the child’s future were made known to the domestic courts and that is what had been done. Lastly, the first applicant had been able to appeal to the Court of Appeal, had had ample opportunity to put her views to that court, and her arguments were fully addressed in its judgment. Consequently, the very essence of the first applicant’s right of access to a court had not been impaired.
Conclusion: no violation (unanimously).
(See also Stanev v. Bulgaria [GC], no. 36760/06, 17 January 2012, Information Note no. 148; and Shtukaturov v. Russia, no. 44009/05, 27 March 2008, Information Note no. 106)
* In England and Wales the Official Solicitor acts for people who, because they lack mental capacity and cannot properly manage their own affairs, are unable to represent themselves and no other suitable person or agency is able and willing to act.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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