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Litigation Friends

21st March 2012

Jonathan Djanogly responds to a back bench MP’s debate on ‘Litigation Friends’ - a competent person who acts on behalf of a person who lacks the capacity to conduct the proceedings - and the point at which the decision that a person lacks that capacity is made.

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly): I congratulate my hon. Friend the Member for Birmingham, Yardley (John Hemming) on securing this Adjournment debate today on a subject in which I know he has significant experience and interest. He mentioned a number of live cases, which he must appreciate I am restricted in discussing, but he also discussed a wide variety of interrelated and serious topics, which I shall do my best to address.

I acknowledge that the family courts and the Court of Protection deal with some of the most difficult questions affecting the lives of individuals and families, their rights and capacity to make decisions about their own future, as well as decisions about who is best able to take care of children and to provide them with a loving and caring home environment. The courts take such matters seriously, and rightly so. They are sensitive and personal matters and there is a difficult balance to be struck between respect for an individual’s privacy, in particular that of children and other vulnerable people, and promoting openness to support public confidence in the court system.

On litigation friends or guardianship, my hon. Friend has written to me on several occasions regarding the effectiveness of the Mental Capacity Act 2005—he has doubts about the effectiveness of the Act and how it is used. The Act is, however, widely supported by stakeholders for the empowerment it gives to individuals. He referred to an article by the Council of Europe Commissioner for Human Rights—I thank him for sending it to me before the debate—on persons with intellectual and psycho-social disabilities under guardianship being deprived of their legal capacity in several European countries. In the article, the commissioner calls on European Governments to review their legislation on legal capacity and urges recognition that supported decision-making alternatives should be developed for those who want assistance in making choices or communicating them to others.

As my hon. Friend is aware, the Mental Capacity Act provides a statutory framework to empower and protect people aged 16 and over who lack or might lack capacity to make certain decisions for themselves because of illness, a learning disability or mental health problems. Implemented in October 2007, the Act encompasses five main principles. First, there is a presumption of capacity—that all adults have the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise, and that capacity is presumed to be ongoing until there is evidence to the contrary. Secondly, it sets out the right of individuals to be supported to make their own decisions—that all reasonable help and support should be provided to help individuals to make their own decisions and, if necessary, to communicate those decisions, before it can be assumed that they have lost capacity. Thirdly, the Act provides that it should not be assumed that people lack capacity simply because their decisions might seem unwise or eccentric. Fourthly, if people lack capacity, anything done on their behalf must be done in their best interests, and the Act provides a checklist of factors that all decision makers must work though when deciding what is in the best interests of the incapacitated person. Finally, if people lack capacity, before a decision is made on their behalf, all alternatives must be considered and the option chosen should be the least restrictive of their basic rights and freedoms.

The Act is intended to assist and support people who might lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. It also aims to balance individuals’ right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves. The Act covers a wide range of decisions made or actions taken on behalf of people who might lack capacity to make specific decisions for themselves. Those decisions can be about day-to-day matters such as what to wear or what to buy when doing the weekly shopping, or about major life-changing events such as whether the person should move into a care home or undergo a major surgical operation. Certain decisions, specified in the Act, can never be made on behalf of a person who lacks capacity to make those specific decisions, either because they are so personal to the individual concerned, or because they are governed by other legislation. Such decisions concern family relationships, such as consenting to marriage or a civil partnership, consenting to have sexual relations, treatment under the Mental Heath Act or decisions on voting in an election or referendum.

The capacity to litigate is based on a common law test of capacity set down by the courts. My hon. Friend is aware of the Masterman-Lister case which makes it clear that the presumption is that all adults are competent to manage their property and affairs; it is for the person alleging incapacity to displace that presumption and to prove incapacity, not for an adult to prove his own capacity; and it is a fundamental right of a person to conduct proceedings. That presumption is not removed lightly. The assessment of litigation capacity is a matter for the court in the individual case to decide and—this is important—not for an expert giving evidence on capacity. I confirm to my hon. Friend that the legislation in force in England and Wales supports individuals to make their own decisions, as called for in the commissioner’s article.

My hon. Friend also questioned how litigation friends are appointed. The appointment of a litigation friend is governed by procedural court rules. The duty of a litigation friend is set out in rules and associated practice directions. The courts would not wish people to be deprived of their autonomy or prevented from conducting their own proceedings in the absence of cogent evidence that they lack the mental capacity to do so.

John Hemming: My intervention might be reasonably long, to deal with some of the Minister’s points. I accept that the Government do not comment on individual cases at all, not only on individual live cases. I accept the Minister’s argument that to some extent the Mental Capacity Act is compliant with the UN convention of 2006 and that movement has been in the right direction, if not as far as one might hope. My argument is that the system itself has no real accountability or any proper checks and balances. The court makes the decision, but it is based on opinion from a social worker or expert, and there is no real opportunity to check that process.

Mr Djanogly: I have addressed the position of the courts, which are independent of the Government. I will come to the question of experts later.

My hon. Friend also queried the role of the Official Solicitor as a litigation friend. The Official Solicitor is an independent office holder of the senior courts whose duties include acting as a last-resort litigation friend to those who lack the capacity to conduct their own litigation. He is not accountable to Ministers or to the Ministry of Justice for his decisions in individual cases, nor are Ministers or the Ministry responsible for those decisions. The Official Solicitor will conduct the litigation on behalf of the person for whom he is acting as litigation friend fairly, competently and in their best interests.

John Hemming: I asked the Minister a question about the Official Solicitor, who I accept is supposed to be the litigation friend of last resort. My point is that he is often the litigation friend of first resort. The most important question is: how do we know that the Official Solicitor is doing his job properly?

Mr Djanogly: That question could be asked of any lawyer who has a relationship with his client.

John Hemming: The Official Solicitor may be legally qualified, but his role is not that of a lawyer: his role is to make decisions and to instruct lawyers. Normally, the Official Solicitor instructs another firm to act. The question is: how do we know that the Official Solicitor is doing his job properly?

Mr Djanogly: The Official Solicitor is an independent appointment, and my hon. Friend could ask the same question about a judge, for example. How do we know that a judge is doing his job properly?

John Hemming: It obviously comes back to the question of secrecy and monitoring of the legal system. If there is transparency, one can have some comfort that people are doing their job properly. I see many examples of people apparently not doing their job properly.

Mr Djanogly: I will come back to my hon. Friend in more detail, but I have to get through quite lot of his other points in the remaining three minutes—

John Hemming: The Minister has more than three minutes; he has nine minutes.

Mr Djanogly: Five minutes perhaps.

I turn now to the family justice review and expert witnesses in the family courts. In their recent response to that review, the Government set out plans to implement a comprehensive programme of reform of the family justice system. We are grateful for the impressive work undertaken by David Norgrove and his fellow panel members in diagnosing the problems of the current system and setting out clear recommendations to remedy them.

The review was clear about the need to create a more coherent system, characterised by trust and co-ordination between the different courts and agencies involved. As the first step towards that, we are establishing a Family Justice Board to provide greater leadership and co-ordination across delivery agencies nationally and locally, and to prepare the system for the changes to come. In private law, we are determined to put in place a framework that will support separating couples to resolve their disputes more reasonably and more quickly. Whenever possible, there should not be a need to resort to litigation in court.

In public law, when the state intervenes to take children into care, our overriding priority is significantly to reduce the current unacceptable levels of delay. The average care case now takes 55 weeks, and many take much longer. That means months of uncertainty for a child trapped in a difficult situation. That must not continue. We intend to legislate as soon as parliamentary time allows for a six-month time limit on care and supervision proceedings. That will send a powerful message that the current level of delay is unacceptable.

We appreciate that the six-month limit will not be achieved without fundamental changes to the way the system works. One aspect of the reform is to the way in which expert witness evidence is used in the family courts. The evidence suggests that in public law family proceedings, expert witness evidence is used in about 90% of cases, and on average, nearly four reports per case are requested. That high number of reports may well reflect an understandable desire for certainty and for as thorough a process as possible to be gone through before life-changing decisions are made. As the family justice review acknowledged, expert witness evidence can often be necessary to ensure a fair and complete court process—for example, to establish whether a child has been harmed by accident or not. Nevertheless, we agree that too many reports are commissioned that add little value to the court’s understanding of the issues and add further delays to the process. We have already announced our intention to legislate to ensure that reports are commissioned only when they are necessary to resolve the case.

In family proceedings involving children, the court must decide whether to permit an expert witness to be instructed, or to allow expert witness evidence to be used in court. Expert witnesses have an overriding duty to the court that takes precedence over any obligation to the party or parties who have instructed them. They are under a duty to assist the court with objective and independent advice and to provide advice that conforms to the best practice of their profession. My hon. Friend mentioned recent research and cases reported in the press showing that there is a problem with expert witnesses in the family courts.

My hon. Friend referred to practice in the United States, and I would be interested to see data on the systems uses there, but we do not agree that a review is necessary. The family justice review has already conducted a thorough analysis of the problems in the family justice system, and the Government have made a commitment to significant reform. We will consider carefully the findings of the recent research on psychological expert witness reports. We accept the need for reform of the use of experts in family proceedings and for more research following the study.

John Hemming: I do not think that the family justice review managed to identify the real problems in the system. It was flawed from the start inasmuch as the panel members were generally people who worked within the system, instead of people who have had experience of it and are critical of it. I do not agree with the Government’s conclusions or those of the family justice review.

Mr Djanogly: I hear what my hon. Friend says, but the family justice review has been well received widely and across all sections and stakeholders, and that is the basis on which the Government are proceeding.

My hon. Friend mentioned Professor Jane Ireland’s recently published research on psychological expert witness reports used in family public law proceedings, and I agree that it is a useful contribution to our understanding. As Professor Ireland points out in her report, it is the first study of its kind and is based on only a small sample of family cases. While it is indicative of weaknesses in the practices of some psychologist expert witnesses, it is not possible to determine from this preliminary study whether the findings are representative. Nevertheless, the Government accept that there is a need for further research in this area, including on the quality of expert witness reports, to further our understanding of the issues identified by Professor Ireland and the family justice review.

We also agree that there is a need to improve the quality of expert reports. We intend to work with the relevant bodies, including the Legal Services Commission, expert witnesses, health sector bodies and local authorities, to develop quality standards. Others in the system also have a role to play: they include legal sector professional bodies providing support and guidance to lawyers who are responsible for commissioning expert witnesses; those responsible for maintaining ethical and quality standards within the medical profession: and expert witness representative bodies. Each has an important contribution to make to ensure that expert witnesses undertaking this vital work for the courts have the right training, skills and knowledge.

My hon. Friend discussed openness in family courts, and there are often calls for greater openness. It is of course vital that the family justice system commands public confidence and that justice is not only done, but is seen to be done. At the same time, there is a clear need to balance the desire to be more open with ensuring that the privacy of vulnerable children and families involved in these cases is protected.

John Hemming: Does the Minister accept that there are people like me who perceive that justice is often not done?

Mr Djanogly: I cannot argue against my hon. Friend’s position. He goes to courts and sees cases, and he takes a view. It is not an easy balance to strike. The debate on this issue has been long running and is controversial. It has been subject to two public consultations, but little consensus of opinion has resulted. The Government have accepted the concerns expressed by the Select Committee on Justice in its inquiry into the operation of the family courts and agreed that we should not commence the provisions in part 2 of the Children, Schools and Families Act 2010. We are still looking at ways in which the family courts can release more information. In doing this, we will take into account the findings from the final report into the family courts information pilot, which was published in September 2011.

I emphasise that the Government firmly support the right of every adult to make their own decisions about their future whenever possible, and to be assisted to make those decisions if necessary. We also support the need for greater transparency in the operation of the courts. We accept that the current position in the family courts is unsatisfactory and we are considering ways in which more information can be released. We are committed to radical reform of the family justice system to help to improve the lives of thousands of children and families.

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