APPLICATION NO 38245/08 IN THE EUROPEAN COURT OF HUMAN RIGHTS BETWEEN: RP Applicant -andUNITED KINGDOM Respondent THE EQUALITY AND HUMAN RIGHTS COMMISSION Intervener

SUBMISSION ON BEHALF OF THE INTERVENER

INTRODUCTION 1.

The Equality and Human Rights Commission (“the Commission”) is a non-departmental statutory public body established under the Equality Act 2006 (“the 2006 Act”): see s.1. The Commission has statutory duties, inter alia, to promote understanding of the importance of equality and diversity, encourage good practice in relation to equality and diversity, and to enforce the equality enactments: s.8(1), 2006 Act. The Commission has power to intervene in proceedings before the domestic courts which raise equality and human rights issues, and frequently does so. The Commission also has formal status with the Human Rights Council and human rights treaty bodies of the United Nations, and a role in assessing and reviewing compliance with the Paris Principles for national Human Rights Institutions. This is the first time that the Commission has intervened in a case before the European Court of Human Rights.

2. One area in which the Commission has taken a particular interest is in ensuring equal and effective access to justice for members of disadvantaged groups. It has intervened in a number of recent domestic cases in this field. For example, in R(MG) v London Borough of Tower Hamlets [2008] EWHC 1577 (Admin), [2008] ELR 523, the Commission intervened to ensure that education legislation was not given a meaning which prevented looked-after children from having real, effective and equal access to the Special Educational Needs and Disability Tribunal. In R(C) v Secretary of State for Justice [2008] EWCA Civ 812, the Commission intervened in a case which concerned the implications of changes in penal policy in secure training centres for members of minority ethnic groups. Most recently, in R(FB) v Director of Public Prosecutions [2009] EWHC 106 (Admin) (determined by the Divisional Court on 27th January 2009), the Commission intervened in support of the claimant, FB, who successfully established that there was a breach of Article 3 ECHR in circumstances where the prosecution of an alleged offender for a serious assault was terminated

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on the inadequately reasoned basis that FB’s mental health problems meant that he could not be put forward as a credible witness. 3. It is in the context of its concern for equal and effective access to justice for all groups in society, including learning disabled litigants, that the Commission has sought to intervene as amicus curiae in this case. Judicial protection of such genuinely equal rights is especially vital in proceedings which affect that most fundamental of human relationships, between parents and children. These submissions are supported by, and designed to be read in conjunction with the expert report of Helen Tyers at Annex 1 and with reference to the following additional annexes: Annex 2: Report of the Joint Parliamentary Committee on Human Rights “A Life Like Any Other? Human Rights of Adults with Learning Disabilities” (7th Report of Session 2007-2008) Annex 3: Department of Health & Department for Education & Schools - Good Practice Guidance on Working with Parents with a Learning Disability (1st June 2007) Annex 4: Social Care Institute for Excellence Research Briefing 14: Helping Parents with Learning Disabilities in their role as parents, February 2005 Annex 5: Ann Craft Trust: Acting to Support Parents with Learning Disabilities, 2005 Annex 6: MENCAP, Ann Craft Trust & the Parenting Fund: Making the Difference: Supporting Parents with learning disability (2008) Annex 7: Official Solicitor’s Practice Note on Appointment in Family Proceedings Annex 8: Official Solicitor’s note: Resources for Parents with Learning Difficulties (02/2007 HMC). Annex 9: Valuing People Now, 2009 Annex 10: Domestic caselaw referred to in submission. Annex 11: the UN Convention on the Rights of Disabled Persons Annex 12: The Council of Ministers’ Recommendation R(99)4 “Principles concerning the legal protection of incapable adults” 4.

The Commission does not, of course, comment on the fact of this case, but seeks to ensure that its submissions are relevant to the circumstances of it.

5. The submissions which the Commission wishes to develop concern the procedures surrounding the appointment of a litigation friend (in this case the Official Solicitor) to represent the interests of learning disabled parents; and the appropriate role for such a person in proceedings in which consideration is being given to removing children from their parent’s care. In summary, the Commission’s position is as follows: a. Legislation, policy and practice guidance for social care and other practitioners all illustrate that decisions on the best interests of children with a learning disabled parent should not be taken without proper consideration of whether the child can remain in the family home with enough support for needs arising from the parent’s impairment. But the evidence establishes that learning disabled parents in the United Kingdom are more likely to have their children removed from their care than other parents, and frequently do not receive the support which they need in order to retain custody of their own children. b. That background means that decisions about the removal of children from learning disabled parents require very close scrutiny of the support offered to the parents. Without such scrutiny, the court considering care proceedings cannot establish 2

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whether proper respect has been afforded to protecting family life, and whether the interference is justified and proportionate, as required by Article 8 ECHR. The right of access to a court in Article 6 ECHR is one of the most fundamental Convention rights. It underpins the rule of law and the “real and effective” protection of every other right in the Convention. The right to “respect for private and family life”, protected by Article 8 ECHR, also has essential procedural aspects. The long-established and constant caselaw of the Court and Commission demonstrates that there is a violation of the rights protected by Article 6 and the procedural aspects of Article 8 in any case involving separation of parents and children where effective procedural safeguards are not employed to ensure a fair hearing of the case for the parents, as well as the case for the child and the State’s perspective. No matter what the merits or de-merits of particular opinions about where a child is best placed, the State cannot demonstrate “respect” for family life, or that an interference with it is necessary, without also providing and implementing fair and effective procedures for ensuring that the views of parents are properly represented before courts or tribunals making decisions about family separation. A learning disabled person may have particular problems ensuring that their views and interests are properly advanced before a court, particularly if it appears that they may lack litigation capacity. The guarantees in the Convention are intended to be `real and effective’ not `theoretical and illusory’, and the Court’s recent caselaw on the effect of Article 14 establishes that there may be discrimination in cases where unlike cases are unjustifiably treated alike, as well as in cases where like cases are treated differently. Thus, it is clear that Articles 6, and/or 8 and/or 14 may be breached if limitations upon the learning disabled litigant’s rights of access to a court are greater than is strictly necessary, or act to impair the very essence of the right. Equally, there will be a breach of Article 14 read with Articles 6 and/or 8 if the litigation friend appointed to represent the interests of a learning disabled parent does not take sufficient positive steps to ensure that the specific needs and interests of such a parent are properly taken into account. It is important that particular strong procedural safeguards are required to ensure that the parent’s views are properly, fully, and fairly advanced before the court represented in childcare cases the parent is an adult with a learning disability. In order for this to be the case, the following elements are, in the Commission’s view, essential: i. A decision about the parent’s litigation capacity be taken on the basis of a report obtained by solicitors instructed on his or her behalf, or the court, but not on the basis of a joint report part-funded by an opposing party in family litigation. (As explained below, this is to be distinguished from questions of capacity which arise as issues in the care proceedings themselves); ii. The question of capacity be kept open, with a formal institutional/legal mechanism for it to be challenged by the learning disabled person, and reviewed if any evidence suggests it may be wrong or have changed; 3

iii. In circumstances where the Official Solicitor or another litigation friend is appointed to represent the best interests of a learning disabled parent, the case they put forward must be focused solely on the needs and wishes of the parent. That is not to say that the litigation friend cannot put forward a case which departs from the case which would be advanced by the learning disabled persons if they were representing themselves. It may be that the Official Solicitor does not consider that case to be in his or her best interests. But the focus should be on that person’s interests, alone. It is not the role of the Official Solicitor or other litigation friend to balance the interests of the parent and the child. If and to the extent the parent is represented by a litigation friend who seeks to present to the court an opinion as to what is in that person’s best interests “balanced” with what is in the child’s welfare, there is a breach of Article 6 and/or Article 8 and/or Article 14 ECHR. The litigation friend’s sole role is to promote the best interests of the person for whom they are appointed. Promoting the child’s interests is the role of the child’s legal representative, and deciding on whether the best interests of the child and the interests of the parent are opposed is the duty of the court. THE POLICY CONTEXT – IN ENGLAND, LEARNING DISABLED PARENTS FREQUENTLY LACK THE SUPPORT WHICH THEY NEED TO RETAIN CARE OF THEIR CHILDREN 6. It is well-established, both as a matter of English domestic and Convention jurisprudence, and in good practice guidelines, that it is in the best interest of children to live with their parents as long as this is consistent with their welfare. Children must not be removed from parents because their parents lack a particular intelligence quotient, but only if it is established, by evidence tha they are suffering or likely to suffer significant harm in the care of their parents, and if it is their interest that a care order is made. As Lord Justice Wall observed in Re L CA 25/8/06, “Anything else is social engineering and wholly impermissible.” It would also, of course, constitute an obvious violation of Article 8. 7. In England, policy and practice guidance for social care and other practitioners all confirms that no decisions on the best interests of the children of learning disabled parents should be taken without proper consideration of whether the child could remain in the family home, given adequate support for needs arising from parental impairment. But the evidence establishes that very frequently, actual practice is far behind that advocated in guidance (see Annex 1 at paragraphs 19-38). Thus, in very many cases, learning disabled adults and their children do not receive the sort of support recommended by, for example, the Department of Health and DfES in “Good practice guidance on working with parents with a learning disability” (Annex 3). This was recognised in the recent report of the Joint Parliamentary Committee on Human Rights’ Report “A Life Like Any Other? Human Rights of Adults with Learning Disabilities”, 2008 (Annex 2), especially pages 5-10 and pages 58-63. That report focuses on the lack of realistic access to support for parents with learning disabilities and their children, and inadequacies of access to information for parents with learning disabilities. It is also buttressed by the Expert Report of Helen Tyers, (Annex 1). Nor is this the inevitable result of ensuring that the best interests of children are treated as the overriding objective in childcare 4

proceedings. Evidence from 2005 cited by Ms Tyers (Annex 1, paragraph 8), shows that there are stark regional disparities between the proportions of children of learning-disabled adults: varying between 75% in one part of the country to less than 20% in another. As Ms Tyers observes in her report at paragraphs 39-51, “support can keep families together”, and “the majority of learning disabled parents, if properly supported would be enabled to look after their children ... often the solutions are easily provided if the right assessment has been completed”. 8. Consequently, in cases where a local authority suggests removing a child from a learning disabled parent, the mere fact of the parent’s impairment, or even the clearly-evidenced fact that the parent could not provide for the child’s care needs alone, will not be end of the matter. There is an important enquiry to be made, on the parent’s behalf, as to whether services can be put in place to support them in caring for their child at home, and facts about this enquiry and the potential availability of services should be put before the Court on the parent’s behalf. THE LEGAL FRAMEWORK 9. The enjoyment, by parent and child, of mutual society, is at the core of Article 8 ECHR. Of course, protecting a child from harm is an interest capable of justifying the taking of a child into care (ie is a relevant reason for interference). But to remove a child from his or her family is a serious step, itself capable of seriously infringing the child’s, as well as the parent’s rights. Very considerable psychological (and, on occasion, other) harm can be done by removing a child from his or her home environment, as the facts of Scozzari demonstrated (see also Article 9 of the UN Convention on the Rights of the Child). Hence a high degree of justification is required in order for sufficient reasons to exist for interference. (See Scozzari & Giunta v Italy [2002] 35 EHRR 12, para 148). Thus, the Court has properly applied a strict definition of `necessity’, and requires stronger justification for the removal of a child from a family than the mere fact that the family environment has some unsatisfactory features, or that it might promote the welfare of the child to be placed elsewhere: see eg K & T v Finland 31 EHRR 212 at [173], Kutzner v Germany [2002] 35 EHRR 25 at [69], and Scozzari at [170]. 10. The clear policy objective of the law is avoid unwarranted state interference with the family relationship, whilst permitting – and indeed, requiring - interference where this is strictly necessary to preserve some other interest, such as the physical or psychological integrity of the child. Such interference with the family relationship must, in each case, be not only necessary, but proportionate to the circumstances of the case. 11. Since such close scrutiny must be given to the proportionality of interference with family life, Article 8 will be breached if childcare decisions are reached without adequate procedural safeguards for the interests of the family members involved, including the parents. The same fairness requirements arise by reference to Article 6 ECHR: see W v UK [1988] 10 EHRR 29 at [62-64]. Whilst in some cases where a litigant has a mental illness or mental or learning disability, it may be necessary to place conditions upon, or to limit, a litigant’s access to the court, any such reduction or restriction must be the minimum necessary in the circumstances of the case. It must not be disproportionate to the circumstances, nor exercised in such a way that the very essence of the right is impaired: see Ashingdane v UK [1985] 7 EHRR 528 at [57]. Thus, whilst there is no necessary breach of Article 6 5

in a court declaring a person to lack capacity to litigate, or in the appointment of a litigation friend (see Stewart-Brady v UK, App No 27436/95, 2nd July 1997), the Court has held that “particular diligence” is required in considering questions of civil status or capacity: see Bock v Germany, Series A no 150, at [47] and [49]. 12. When considering the rights of learning-disabled litigants, Article 14 ECHR has an important bearing on the matter. The Court established, in Thlimmenos v Greece [2001] 31 EHRR 15 at [44] that the non-discrimination principle is violated not only by unjustifiably treating similar cases differently, but “also ... when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”. 13. The concept of failing to treat cases differently to allow for the discriminatory outcomes in the absence of difference in treatment is particularly important in the case of people with a learning impairment. They will often require some positive support or consideration in order to enjoy protection of their rights to respect for family life, and rights of access to a court, which are genuinely as “effective” as those enjoyed by persons who do not share that disability. 14. This concept of “reasonable accommodation” as a means of eliminating de facto disadvantages suffered by disabled people has acquired international recognition as an essential means of ensuring that there is “real and effective” equal enjoyment of other civil rights and social advantages. For example, it is now recognised by the EU, in the context of employment, in Directive 2000/78/EC. It is also a corner-stone of the UN Convention on Rights of Disabled Persons, especially Article 2: “reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”. 15. The relevant provisions of the ECHR should be read in the light of the UN Convention, and particularly Articles 12(3), 12(4) 13(1) and 23(1), (2) and (4). Article 12 pertains to equal recognition before the law. Article 12(3) provides: “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. Article 12(4) provides: “States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity, respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests”.

Article 13 provides for access to justice, and Article 13(1) provides: 6

“States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. ...”

Article 23 concerns respect for home and the family, and provides so far as is material: (1) States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships on an equal basis with others ... (2) States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption or children or similar institutions, where these concepts exist in national legislation; in all cases, the best interests of the child shall be paramount. States shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities. ... (4 ) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except where competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents. ...” The United Kingdom has not yet ratified the UN Convention, but contributed significantly to the development of it, and intends imminently to do so. The Minister for Disabled People, Jonathan Shaw MP, recently said that ratification would happen by Spring 2009. 16. The Commission also refers to the Committee of Ministers of the Council of Europe’s “Principles concerning the legal protection of incapable adults” (R(99)(4), and particularly Principles 2, 3, 6, 13 and 14). 17. In the light of these provisions, the Commission submits that: a. It will not be proportionate, and is likely to breach Articles 8 and/or 14 read with Article 8 for the child of a learning disabled adult to be placed for adoption, if he or she could, with adequate social services intervention, reasonably be kept in the family home. b. There will be a distinct breach of Article 6 and/or the procedural aspects of Article 8 and/or Article 14 read with Articles 6 and 8 if a court decides to remove the child from the family home which has been taken without adequate, and adequately informed, enquiry into the interventions which might enable the learning disabled adult to be a good-enough parent. c. There will be a breach of Article 6 and/or the procedural aspects of Article 8 and/or Article 14 read with Articles 6 and 8 if the process through which the care decision is reached does contain sufficient procedural safeguards to protect the rights of the learning disabled parent to participate in the proceedings and to have his or her interests advanced to the greatest extent possible. 7

DEFECTS IN THE INSTITUTIONAL FRAMEWORK 18. As outlined in summary in paragraph 5(j) above, the Commission considers that the circumstances of the present case illustrates gaps in the institutional frameworks and practices, current at the time of the RP case, which depart from the human rights principles and standards set out above. 19. Firstly, as the Court said in Bock v Germany, `particular diligence’ must be given to following fair procedures if a person is to be deprived of litigation capacity. It should be recognised that in adversarial proceedings, one party may have an interest in the other being regarded as legally incapable. Thus, where a solicitor acts for a person whom, it is believed, may lack legal capacity, it should be that solicitor who obtains an expert report on this issue. (If no solicitor is acting, then the court should do so). An expert report on mental capacity should not be a joint report of the parties in what may become adversarial litigation. Although evidence of the litigant’s dealing with an opposing party, may be relevant matters for the expert determining the question of litigation capacity to consider, the expert should not be jointly instructed by the parties. 20. The Commission considers that it is incompatible with Article 6 and the procedural aspects of Article 8 for the issue of the capacity of one party to litigate to be determined by an expert jointly instructed, and part-funded by the local authority who is the parent’s adversary in the underlying proceedings. The Court of Appeal in this case considered, at paragraphs 177-178 of its judgment, that it would be objectionable to have the Child Protection Team, acting as an adversary to the parent in proceedings, acting also as advisor to the learning disabled parent on the roles and responsibilities of his or her litigation friend: “*It+ would have a clear conflict of interest were it to seek to ensure that the parent in question fully understood the role of his or her litigation friend”. The Commission agrees, and considers that there is the same objection to the appointment of a joint expert on the issue of whether the parent must have a litigation friend at all. 21. The expert’s report on this issue is not analogous to a report for the court on the parent’s capacity to look after the child, which is an issue in the substantive proceedings. The appointment of a joint expert on an issue in the proceedings, such as parental capacity may be an appropriate procedural step. But an expert report on the question of litigation capacity does not goto an issue in the underlying dispute. Rather it is a report to the court on the prior question of how much freedom, if any, that party may have to advance his or her views on those issues in the proceedings themselves, and the extent to which he or she can will be compelled to accept limitations or conditions upon his or her right to conduct the litigation at all. 22. Secondly, it should be recognised that litigation capacity can fluctuate or alter. Loss of litigation capacity is a very serious a matter. So where, as here, there is a mechanism whereby an official litigation friend can be appointed against the litigant’s will, there should also be a formal mechanism prescribing the circumstances in which, the evidence upon which, and time or means by which, the litigant deemed incapable can apply to have that decision set aside. The absence of such a mechanism constitutes a disproportionate infringement of the right of access to a court protected by Article 6.

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23. Whilst the Commission casts no doubt upon the good faith of the Official Solicitor or any of the experts instructed in the present case, it considers it to be institutionally unsatisfactory for there to be no such formal procedure. Once a person has been declared to lack litigation capacity, under the present system there is no means of his reacquiring it unless the Official Solicitor or the solicitor instructed by him on behalf of the litigant considers that the litigant may have recovered the capacity. There is no procedure for the litigant him or herself to raise the question, or to seek a further expert’s opinion, and no obvious mechanism requiring a review where, as here, the litigant produces an ostensibly plausible report from a Consultant Psychiatrist who expresses the view that she does have capacity. 24. Finally, there is the issue of what case the Official Solicitor should be advancing. The Commission recognises that where the Official Solicitor, as litigation friend, represents someone who lacks capacity to make decisions as to what is in his or her best interests. In representing that person’s best interests, he may be advancing a case which is not in accordance with the wishes expressed by that person. However, in order to impair the rights protected by Article 6 and/or Article 8 to the minimum extent necessary, and in order to comply with the Committee of Ministers’ Recommendation R(99)4, the Commission considers that the Official Solicitor’s submissions on behalf of a learning-disabled parent in care proceedings should observe the following principles: a. They must inform the court of the litigant’s expressed wishes, even if stating that they are not, in the Official Solicitor’s view, his best interests, or the course which the court should follow. b. The litigation friend’s role is to advance only the interests of the person they are appointed to represent, and not to act as a quasi-amicus for the Court. For example, the representations may weigh the psychological advantages to the learning disabled parent of retaining care of their own child against the stresses and psychological disadvantages to that person of having to undertake the day to day responsibilities of parenting before making a submission on the litigation friend’s perception of that person’s best interests overall. c. What the Official Solicitor’s submissions may not do, in the Commission’s view, is to seek to `balance’ the learning disabled parent’s best interests with those of the child or the `right outcome overall’. d. That is not the role of a litigation friend to one party in an adversarial system. Advancing submissions on the child’s best interests is the role of his or her guardian and/or the local authority. Reaching the appropriate balance as between the best interests of the parent and the child in such circumstances is the role of the Court and not the Official Solicitor as litigation friend. e. If the Official Solicitor, as the sole, and compulsory representative of the learning disabled parent’s case, does not put forward the case as to what is in that person’s best interests (even if it conflicts with the case as what is in the child’s best interests), there is, in the Commission’s view, an unacceptable breach of the principle of equality of arms, and a breach of Articles 6, 8 and/or 14. f. Finally, the role of the Official Solicitor, as litigation friend for a learning disabled parent, in a case of contested childcare proceedings is adequately to test the case advanced by the local authority, that a rupture in the parent’s care for his or her 9

child is an appropriate, necessary and proportionate interference with the parent’s rights in all the circumstances. g. It is neither appropriate nor proportionate to remove a child from the care of his or her parents in circumstances where, with adequate support, the parent could care for their own child. h. A learning-disabled parent may need more support than another parent to provide adequate care. Thus, in order to ensure that a learning disabled parent is not discriminated against in practice, contrary to Articles 6 and/or 8 of the Convention read with Article 14 (and the principles of the UN Convention on the Rights of Disabled Persons, cited above), the Official Solicitor must make sure that the court is aware of best practice guidelines, and the support which could be given to the learning disabled person in performing the responsibilities of a parent; what consideration the local authority has given to these matters. The Official Solicitor must inform the court expressly of what consideration, if any, has been given by the local authority to giving support to the learning disabled person in order to enable them to exercise their parental rights and responsibilities, and make such submissions as they consider to be in the parent’s best interests on what further support, if any, could be given to enable them to retain care of their own child. i. Requiring such steps is a necessary feature of Court procedures in order to give a learning-disabled parent access to justice and respect for his family life which is effectively equal to those enjoyed by others not sharing that disability. It is also a measure envisaged by Articles 12, 13 and 23 of the UN Convention, cited above. 25. The Commission is grateful to have the opportunity to make submissions on the important points of law and practice which arise from this case. It does so with a view to ensuring that sufficient positive steps are taken to enable learning disabled parents to enjoy respect for their family life which, in practice, is genuinely as equal as possible to that enjoyed by other parents. It also wishes to ensure that court procedures in England and Wales enable learning disabled parents to have real, effective and equal access to courts in childcare proceedings.

HELEN MOUNTFIELD Matrix Chambers, 1st February 2009 The Equality and Human Rights Commission 3 More London Riverside Tooley Street London SE1 2RG

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