RP v (1) Nottingham City Council (2) Official Solicitor (2008) EWCA Civ 462

This was an appeal against the making of care and placement orders in respect of RP’s two year old daughter. The appeal was made largely on the basis that the earlier hearing had been conducted in a manner that convened RP’s rights under article 6 of the ECHR, in particular she claimed that she had not known that the Official Solicitor had been appointed to act on her behalf and that the role and decisions the Official Solicitor took effectively denied her a fair trial. During the course of the earlier care proceedings a jointly instructed clinical psychologist had determined that, because of significant learning disabilities, RP was not able to understand fully the nature of the proceedings, nor properly instruct her legal representative. As a consequence the second respondent, the Official Solicitor, was appointed as her litigation friend. The Official Solicitor did not oppose the making of the order and conceded that she was unable to give her consent to the making of a placement order, so such consent could be dispensed with. As a result the placement order was made. The first respondent, the local authority, sought clarification from the Court of Appeal as to the steps it should take in such proceedings when there was an issue as to the parent’s capacity to litigate.
Dismissing the case the Court of Appeal determined that RP had been unable to establish any aspect of her case, the case file clearly demonstrated that she had been fully informed of the role of the Official Solicitor and there was no reason to accept the ‘unfounded and unsubstantiated allegations’ made by her McKenzie friend, Mr. John Hemming MP, that the official solicitor and solicitors acting for RP had falsified their records. Wall LJ was highly critical of Mr Hemming for ‘abusing his position’ in setting out these allegations and for his criticisms of the earlier proceedings and the family justice system in general. The Court found that there was no evidence to support her case that her article 6 rights had been violated and held that both the care and placement orders were correctly made.
The Court of Appeal highlighted the changes to the pre-action procedure in such cases now expected as a consequence of the Public Law Outline Guide to Case Management in Public Law Proceedings [‘the PLO’]. The Court advised that, under the PLO, a local authority was required to consider the issue of the parent’s capacity from the outset of any intervention and to be aware that they may be a ‘protected party’ for the purpose of any proceedings under the civil procedural rules. Where such concerns are raised then the local authority would be advised to refer the parent to their own learning disabilities team so that a full assessment of capacity can be undertaken (if need be using an external expert) and advice and assistance given to the parent. The Court was clear that the issue of a parent’s capacity should not be determined by the social worker within the children and families department. Where proceedings are under consideration the local authority should ensure that their learning disability team working with the parent is in a position to properly advise the parent’s legal advisors as to whether a litigation friend would be necessary. However once proceedings were issued it was for the parent’s appointed legal representative to determine how best to conduct their case, including whether the parent understands the role of the Official Solicitor and the proceedings generally. The question of whether an appointment of a litigation friend was required and whether this should be undertaken by a family member, friend or the Official Solicitor was a matter for the Court and was, in this case, correctly determined.
This judgment also contains a useful edited report by the Official Solicitor as to his role within care proceedings and those under the Children and Adoption Act 2002.

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