Keehan: Same as paying for interpreter
A High Court family judge has ordered that public funds be made available to pay for lay advocates to support intellectually impaired parents in a court hearing about their child, after expert witnesses said they were necessary to lift the load from solicitors.
The judge ordered HM Courts and Tribunals Service (HMCTS) to fund professionals to help ensure that the parents understood every twist and turn of the proceedings, in the same way it would pay for an interpreter or intermediary.
It was too great a burden for hard-pressed solicitors, who needed the help of skilled professionals, concluded Mr Justice Keehan in a ruling solely on the funding issue. Both HMCTS and the Legal Aid Agency had declined to pay for lay advocates.
Re C (Lay advocates) [2019] EWHC 3738 (Fam) [1] involved a four-month-old baby in the interim care of a local authority after his father was required to leave the residential unit in which the family lived when a serious allegation was made against him. His mother left the unit soon afterwards.
Following cognitive and capacity assessments of the parents, two doctors said the parents could meet the capacity requirements of the Mental Capacity Act 2005 if their solicitors were given support from lay advocates.
The judge found that expecting solicitors alone to ensure the parents understood both the evidence and issues in the case, and could communicate their instructions clearly, “is to require too much of extremely busy public law solicitors”.
Further, due to the low-level functioning of the parents, solicitors alone “are unlikely to have the skills and experience to undertake these tasks as effectively and efficiently as a skilled professional”.
Without their assistance, there was a “grave risk of a potential breach” of the parents’ human rights.
Ordering HMCTS to pay for two lay advocates, the judge said there was “no material difference” between the services provided by an interpreter, an intermediary or a lay advocate “insofar as they each enable and support parties and witnesses to communicate and understand these proceedings”.
He continued: “HMCTS routinely pay for the services of interpreters and intermediaries; I cannot see any principled reason why it should not also pay for the services of lay advocates in an appropriate case.”
The lay advocates would cost £30 and hour each and he assessed the likely number of hours needed at 50 hours.