Although it is often said that the family justice system is a big pool of sectors working independently of one another, the reality is very different and the overlap more obvious to those professionals who work inside the system and to the families who find themselves in it.
This latest debate, tabled by John Hemming MP, on Litigation Friends is a very good example of the impact and nature of the many cross-overs within the family justice system. In this debate, John Hemming talks about the difference between a litigation friend and a McKenzie friend, the problems the UK face with the way they handle diminished capacity and how that affects the world of adoption and care. John goes to great pains to explain the impact of the way the system currently works on families and the persistent problems with expert reports, of which he cites quality and conflict of interest in the form of bias within reports, to name but a couple of interesting things he raises.
Fresh from the publication of Professor Ireland’s report on expert reports from psychiatrists in the family justice system, John goes on to make a very insightful point. He notes that the report shows that the overwhelming majority of experts in this field rely solely on their practice within the system and have no independent practice of their own. This, John observes, places a heavy incentive on professionals to write reports which please the local authority, because the local authority have the power to veto experts if they do not wish them to write a report they need. Now, where’s the impartiality in that?
Do read the whole debate if you have time – it’s thought-provoking and incisive. But if you’re short of time and are something of a Snippet Poppet, we add John’s introductory speech, below:
John Hemming (Birmingham, Yardley, Liberal Democrat)
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.