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Final Report on litigants who lack litigation capacity in Care proceedings published

Key recommendations published

Getting it Right in Time: parents who lack litigation capacity in care proceedings is a detailed report supported by the Nuffield Foundation. It is an exploratory study looking at an under-researched area of care proceedings; those involving parents who become protected parties in court, with the Official Solicitor as their litigation friend, that is, parents who lack litigation capacity.  Parents in this category are affected by mental health problems and/or learning disabilities.

The Introduction to the report highlights that some parents in this category need more time than most people to learn and consolidate new skills and knowledge and that, "All are, for a time at least, experiencing impaired ability to absorb information, consider it and make a coherent and reasonably stable judgment based on that information, to a degree that renders them unable (lacking capacity) to instruct a solicitor."

The research looks at the role of the Official Solicitor in protecting rights including rights under the Human Rights Act 1998, the ECHR and the Equality Act 2010.  It also considers how courts accommodate the needs of parents who are subject to Official Solicitor's protection.

The authors from Plymouth University are Penelope Welbourne (Associate Professor of Social Work), Paula MacDonald (Research Associate) and Philip Bates (Associate Professor in Law). 

The President of the Family Division, Sir James Munby and the Ministry of Justice gave permission for the authors to observe court hearings and for them to speak to members of the judiciary.  In addition, the Official Solicitor and Cafcass/Cafcass Cymru agreed to reviews of files held by the Office of the Official Solicitor and for them to speak to their staff.  The authors spoke to judges, solicitors, caseworkers at the Office of the Official Solicitor, barristers and Cafcass Children's Guardians in a range of local authority and Family Court areas across England and Wales.

In order to find out more about the parents involved and the outcomes of care cases in which a parent lacks litigation capacity, the authors also undertook a retrospective file study incorporating all of the cases in which the Official Solicitor had agreed to act during a twelve month period (37 cases) and explored:

• the reasons for the incapacity decision;
• what happened to the children at the end of the proceedings and
• whether there were any indicators that the 26 week limit for proceedings might have specific implications for parents who lack litigation capacity.

They observed eighteen care hearings between August 2015 and December 2016.

The study concludes, inter alia, that lack of litigation capacity may be due to mental health problems, intellectual disability or some other cause, or a combination of factors and that "capacity is issue specific, so some people may have capacity to make some decisions but not others within one set of proceedings.  It can also fluctuate, especially when the underlying issue is a mental health problem."

It also found that, "Parents could start care proceedings having capacity and lose it, or vice versa, and some parents move in and out of capacity throughout proceedings. An instability in capacity might be exacerbated by the stress of proceedings for some parents, but some parents recovered capacity as their mental state improved during proceedings."

It was also noted that "s20 'voluntary' accommodation had been used for the children of some parents in our sample (named after s20 Children Act 1989, this involves a parent agreeing to a child coming in to care based on parental consent, not a court order). Given the subsequent finding that these parents lacked capacity, this raises questions about how rigorously local authorities assess capacity and how they seek consent to accommodation."

The study also considered the effect of the 26 week time limit in care proceedings. The report states that, "It appears from our data that it is difficult for parents who lack litigation capacity to 'turn things around' within the duration of care proceedings. Very few parents ended proceedings with the care of their children, and although there were challenges to local authority care plans, it appears it is rare for this to lead to the child returning to the parent."

Key recommendations based on the findings of the study include:

• The physical resources available to support parents who lack litigation capacity as participants in the legal process varies between courts and regions. A review is needed of the ability of courts to provide the technology and space needed to give all parents who have specialist communication and participation needs the opportunity to observe, understand and participate in hearings to the best of their ability.

• Without an intermediary to support the parent in understanding what is being asked or said in court, resources spent on interpreters may be under-used. While intermediaries were universally seen as very useful, and lay advocates were valued in supporting parents, some interpreters need the support of an intermediary to help them communicate with a parent who lacks litigation capacity.

• There appears to be variation in the extent to which local authorities fund advocates to help parents attend meetings, including with their solicitor, child protection conferences, and other key decision making meetings. Article 6 of the European Convention on Human Rights / Human Rights Act 1998 and the Public Sector Equality Duty protect the right to procedural justice. Article 20 of the Equality Act 2010 relates to the duty to make adjustments to avoid disadvantage, among other things through the provision of auxiliary aid. It is recommended that local authorities, and solicitors representing protected parties, consider the implications of this duty for meetings outside the court setting as well as in the court process itself.

• Contact after removal into care or adoption, including 'letter box' indirect contact between a parent and their child, is a right of the child, once it has been decided by the court that this should happen in the interests of the child, unless further developments lead to a re-evaluation of that decision. Supporting contact unless there are reasons to end it safeguards the child's Article 8 right to family life under the European Convention on Human Rights / Human Rights Act 1998. It is also the right of the parent to have contact with child as determined by the court, unless the child's welfare contraindicates this. Support for letterbox and other indirect contact should be universally available for parents who lose the care of their children to adoption, and that support should take account of their specific needs.

For the full report click here