The abuse of the provisions relating to the "capacity to instruct" a solicitor continues in the Family Division. It appears now that this is a special trick used by some social workers and legal departments to prevent people from fighting the system.
Followers of my blog will have seen the NHS question about how many reorganisations have we had. We've yet another. The number of PCTs (Primary Care Trusts) nationally is to halve. This means merging East and North. (and then probably HoB and south). It would be nice if people would stick with one structure. There is a quotation ( Which sadly does not appear to be a true quotation ) We trained hard . . . but it seemed that every time we were beginning to form up into teams we would be reorganized. I was to learn later in life that we tend to meet any new situation by reorganizing; and a wonderful method it can be for creating the illusion of progress while producing confusion, inefficiency, and demoralization. But has to have been originated by someone. The web link shown goes through the derivation which appears to be more linked to an anonymous British Soldier WW2 than any Roman or Greek General called by a name perming 2 out of (Gaius, Galus, Petronius and Arbiter). From the...
Comments
Jacquig
I have seen first hand at least two people who are supposedly “incapacitated” yet they know exactly what the case is about & talk about the case with great insight, therefore can obviously instruct a solicitor, it really is not up to a psychologist to say otherwise “opinion” can’t trump “reality”, in fact in one of these cases the GP actually could not believe his patient had an official solicitor when she asked for a referral to a new psychologist & the GP wrote a letter to the court stating at the time this person was said to be “incapacitated”, I saw her & she was fully functioning & knew what the case was about
“Lawyers have no professional choice when someone does not seem to have the competence to instruct. The client has to be assessed by a Psychiatrist - though sometimes a GP is accepted. ”
There is a question as to why anyone’s solicitor would want to undermine their client, the answer is simple “conflict of interest” many solicitors do work for both parents & local authorities, besides local authorities create custom for the solicitor even if they are representing the parent(s) at the said time, both the people I'm aware of in fact live in the same area, have the same solicitor, same social worker, same support worker & both claim & are quite clearly capable, I find that a bit odd to say the least.
“It is right to say that if someone is deemed incompetent they are likely to lose the case - if too incapacitated to instruct the parent is unlikely to be able to parent. And most of the time if parents are at that level they really cannot safely parent unless they are properly supported”
You make a great point & this is exactly what I suspected, parents who are considered “incapable to instruct a solicitor” will get no legal representation because they are considered by default to be too incapable to parent, this is why the official solicitor route is getting more & more popular between professionals, after all the parents are bound to fight back, but tell an Official Solicitor that the person is “incapable” & provided the certificate & you have won without any hassle & the parent is overridden regardless of their objections, after all they are just “incapable”.
I would really like to know the official figures of how many children the Official Solicitor does get back from the state, I suspect it would be an handful at best, at worse zero.
One of the things that could be looked at more carefully is the test which is used by Psychiatrists to determine whether someone is not competent to give instructions. It would also be useful to have some more guidelines for lawyers on what to do if someone is 'incompetent'. I will do a post on my own blog - bloody relations.
jacquig
There are lawyers that use advocates to assist parents who really do have learning difficulties - avoiding a "next friend". However, there are too many con tricks in this part of procedure.