Litigation Friends

The link is to the debate on litigation friends yesterday. I will copy the whole of the debate here:

John Hemming (Birmingham, Yardley) (LD): I thank Mr Speaker for allowing this debate.

If somebody is in an accident and ends up in a coma, they need a litigation friend to instruct a solicitor to sue for damages. A litigation friend, or next friend, is very different from a Mackenzie friend. A litigation friend makes decisions for the person who does not have capacity. If somebody is not in a coma, there is a question of what threshold is required before appointing such a litigation friend or guardian. Thomas Hammarberg, the Council of Europe’s commissioner for human rights, recently stated:

“Persons with intellectual and psycho-social disabilities are today routinely placed under a guardianship regime in several European countries—they are deprived of their ‘legal capacity’. In the eyes of the law they are seen as non-persons and their decisions have no legal relevance. This policy violates agreed human rights standards.”

He refers to the UN convention on the rights of persons with disabilities of 2006.

In England and Wales, the situation is materially worse, primarily because secrecy of the judicial system has allowed widespread malpractice to develop, as revealed last week by Professor Jane Ireland’s report on psychological expert reports. A good example of that is Rachel Pullen’s case, which is currently grinding through the Strasbourg court. Her daughter was removed and adopted, although there were no hearings at which any of the evidence was challenged, because the psychologist appointed to assess her deemed her too stupid to instruct a solicitor. That was clearly not true, as was determined by a later psychological report. However, it was too late. The psychologist said she was incapable of instructing a solicitor. The Official Solicitor came in as her litigation friend and conceded the case against her on paper and there was no hearing. At her appeal, I made two important points for which the court criticised me.

My first point was that the system allows the local authority to veto the appointment of an expert, thus making the expert financially beholden to the local authority. Professor Ireland’s report revealed that the overwhelming majority of experts in the family courts made most, if not all, their income from writing expert reports. Parents only instruct an expert once, but the local authority does so continually. That creates a complacent environment in which experts frequently write the report the local authority would wish to see—well, those experts who drive Ferraris, Porsches and Formula 1 motor cars do anyway.

My second point referred to a letter from the Official Solicitor to Rosleys solicitors. I expressed the view that the letter was created at a later stage and inserted in the file. It was obvious from the letter that whoever did that did not have access to Rosleys office, as there was no received stamp on it, no headed paper was used for its purported sending out, its address format was unusual and the date of receipt and purported posting out was impossible. The court decided that my mentioning those facts was not providing evidence and was critical of my claim. I stand by my claim, and I believe that what I have just said is indeed evidence of forgery. Real problems remain with the appointment of litigation friends. The Rosleys letter was supposed to explain to someone that the Official Solicitor had been appointed as their litigation friend, which is why the letter was so important.

Given the secrecy of the system, people are not generally aware of how the process works. Lee Gilliland, for example, was evicted without notice because he had the Official Solicitor appointed to defend his probate case. The Official Solicitor did not warn him that he was due to be evicted. The Official Solicitor was appointed on the say-so of his general practitioner, Dr Hoyte, who said:

“He has grievances and fixed ideation about many official bodies.”

I find it odd that that is relevant to his having legal capacity. In my view, the fact that someone has a grievance about an official body does not warrant their being turned into a non-person and prevented from making decisions.

The big problem for anyone for whom the Official Solicitor has been appointed is finding any way to challenge such a decision. Most firms of solicitors simply refuse to act for someone without litigation capacity. The civil procedure rules do not really allow people to challenge the appointment of a litigation friend. CPR rule 21.9 states:

“(2) Where a protected party regains or acquires capacity to conduct the proceedings, the litigation friend’s appointment continues until it is ended by court order.”

The assumption is that litigation friends cannot be wrongly appointed. In Professor Ireland’s review of 126 court bundles, she found that two thirds of the reports were “poor” or “very poor”—84 cases where, if the judge relied upon the report, really the decision should be quashed. That raises questions.

England and Wales do not have the facility for a proper review of expert evidence. We do not have the Daubert process that is used in the USA. Any solicitor appointed to act on behalf of a protected party is in danger of being subject to a conflict of interest. Let me mention the case of Anthony Neil Barker, whose website is www.neebert.net. He has written me long, detailed e-mails about how he has regained his capacity, but cannot escape from the Court of Protection. I have some difficulty understanding how that can happen, but when it involves large sums of money, it is not surprising. It is in the solicitor’s interest to keep him as a non-person, as the solicitor can then charge him for things.

Mrs Anne Main (in the Chair): Order. Is the hon. Gentleman talking about a case that is no longer active in the UK courts?

John Hemming: In this case, there may be activity, but I am referring to things that have happened in the past. I discussed the matter previously with the Clerk, and I am being careful not to refer to any decisions that are coming before the court.

Mrs Anne Main (in the Chair): I thank the hon. Gentleman.

John Hemming: Noreen Akhtar is a constituent of mine, whom I have been refused permission to meet. She is a secret prisoner. Experts have determined that she does not have the mental capacity to decide where she lives. I have seen the expert reports, and they look as unreliable as many of the other reports referred to.

Husan Pari has now left the country to get away from the system that made her a non-person. The psychologist who interviewed her through an interpreter said that she was a non-person. A psychologist who later interviewed her in her own language was clear that she did have mental capacity.

The Official Solicitor’s office is an unaccountable place. He has told me that he is not accountable to Parliament on the basis of individual cases. Furthermore, he is not subject to the Freedom of Information Act, or at least not within this area, but he is subject to it in other areas of his activity. Instead, the Official Solicitor is accountable to individual secret court hearings. That really is not good enough. There must be some accountability beyond a few people in suits who have a common interest in concealing malpractice. Hon. Members need to read Professor Ireland’s report to find out about that.

An interesting additional function of the Official Solicitor is to deal with people imprisoned for contempt of court. Deborah Paul is currently serving a one-year sentence in Holloway prison for contempt of court, as part of a private family law case that has turned public. The civil procedure rules strictly forbid people being imprisoned in secret. However, it was revealed in Hammerton v. Hammerton that people are imprisoned with reporting restrictions. I wonder who is protecting Deborah Paul’s rights. When I wrote to the Official Solicitor about his duty to protect the interests of contemnors, he gave me no confidence that he was doing anything. The recent striking off of Dr Ruth Coppard and the attempt by Dr George Hibbert to remove himself from the General Medical Council practising register should really ring alarm bells.

Our family legal system is founded on expert opinion. However, these foundations appear to be more like quicksand. The secrecy in family court hearings has allowed a culture of complacency to develop. Although procedures such as a modified Daubert procedure would enable improvements, secrecy creates a culture that tolerates malpractice. Secrecy in family court hearings has led to broader unaccountability in the appointment of litigation friends and their management of decision making.

I was quite surprised when Professor Ireland’s excellent report on the quality of psychological expert opinion was produced, not because I did not know that this was happening, but because the report was part-funded by the Family Justice Council. However, I was not surprised that, although the report was ready for release in September 2011, it was released six months later. There are people who would like to sweep the contents of the report under the carpet.

I will not quote a lot from the report. Anyone who is really interested in justice in our secret courts should simply read it.

Professor Ireland and Professor John Beaumont, who is from the same university, have produced proposals for a modified Daubert procedure, but that is only a partial solution. Secret courts are unreliable courts. What is needed is less secrecy. Anonymous reports by parties to proceedings should not be subject to any constraints. There must be a facility, potentially via the Information Commissioner, to produce fully public reports.

Justice is important, and it is clear that the system is very unreliable. It is also clear that Parliament needs to resuscitate its powers of investigating individual cases. It is too easy for authorities to refuse to provide information. In the Goder case, where a litigation friend was appointed and the daughter, Yvonne Goder, was imprisoned, probably in secret, there is an allegation that the money from three houses was stolen. Even taking the issue through to the legal ombudsman has not identified what happened to the money. Tracking payments is quite easy and accounts can be provided. However, if a case gets to the legal ombudsman without accounts, I am worried about whether the regulatory system is working properly.

The question always is, quis custodiet ipsos custodes? In this case, who is regulating the regulators? The answer has to be Parliament. Parliament needs to establish a small inquiries committee to find answers where none are forthcoming. Where litigation friends are appointed in secret hearings based upon expert evidence that is known to be systemically unreliable in three courts and about which there is no other systemic research, it is very difficult to find out what is happening in a very murky system. We know that large sums of money are being paid, but we are unsure what for and whether that is in the interests of those people for whom the money is held.

There is always a question about who is appointed as a litigation friend. The Official Solicitor is supposed to be a last resort, but seems to me to be the first choice in many instances. I tried to use judicial review through a limited company to find out what was happening with one secret prisoner—Matthew Hawkesworth—but got nowhere, and the court decided to punish me for the effrontery of challenging the system by awarding costs against me personally, as well as against the limited company. That is one reason why judicial review is an insufficient remedy for a quite significant, wide-ranging problem.

Some solutions to the problem therefore rest with Parliament, rather than with the Government, but they do need to review the situation. I have always spoken about how our judicial system is not compliant with the European Union standards as applied to Croatia, and I will not repeat that in my speech. The Government must take such things seriously.

I have rattled through my speech reasonably quickly. The Minister is well aware of my concerns, because I have been concerned about this matter for a long time. One great difficulty in respect of how our constitution operates is that we have developed an approach whereby Parliament is regarded primarily as a body holding the Executive to account, but the courts—the judicial estate of the constitution—are held to account also through public consideration of their decision making, which then influences Parliament. Parliament then makes decisions and guides what happens if any rules need to be changed, and they clearly need to be changed in a number of situations.

One of the reasons why I have ended up helping to get rid of the Official Solicitor, as people might put it, or to remove their litigation friend is that it is almost impossible to find a way of doing so. People who are often quite bright go around phoning up firms of solicitors and saying, “Oh, the Official Solicitor is acting for me,” and the firms reply, “Well, we can’t deal with you.” Even then, there is still the matter of legal aid.

I tend to get involved because people must be aware of my concerns about how the litigation friend system operates and come to me. I have talked to other hon. Members who have encountered difficult situations as well, but people often get excited about the being made into a non-person thing. I do not blame them for that, but they get quite angry, and when they present themselves to other hon. Members, they do so in quite an angry state, yet that is in part because the system is simply not responding to them. As described by Thomas Hammarberg, they are treated as non-persons and their decisions have no legal force.

I have spent some time studying the historical records of Parliament, which are interesting and available in the Library. What Parliament used to do more readily, because people came with casework or whatever, was to establish small committees of inquiry into issues that might have developed because they got stuck and could go no further. Parliament needs to have a willingness to establish a committee of inquiry just to find out the facts. The House of Commons may be a court, but, constitutionally, it would be wrong to revert to taking decisions that have legal force on individual cases. What about investigation, however, and that question of who is regulating the regulators? How do we manage the process when a regulatory system goes wrong? In a limited number of cases—we would not want to overwhelm ourselves with work—Parliament has the power to find out what is going on.

To take the case of the three houses, there is clear evidence of some sort of fraud, and finding out what fraud has occurred is critical. One difficulty, as in the recent Asian royal family case, is that sometimes the regulators or the police will steer clear of an issue. Interestingly, in that case, which relates to the funding of al-Qaeda, the Australian police are willing to investigate, whereas I am told that the UK police are not. I do not have that in writing, but I shall pursue it with the Government if I do so.

I leave the Minister a reasonable amount of time to respond. Some serious issues are going on and have been for some time. With Professor Ireland’s report and the recent regulatory action in respect of Dr Ruth Coppard and Dr George Hibbert, it is becoming more obvious that the problem is serious. I am interested in what the Government have to say.

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.