There has been an important and welcome judgement recently from the High Court that deemed that two parents with a learning disability are legally entitled to funded independent advocacy.
Parents with a learning disability
The case involves two young parents with a learning disability. Their local authority issued care proceedings. Two psychologists recommended advocates be appointed for the parents so they could understand and fully participate. Both the Legal Aid Agency and the HMCTS (Her Majesty’s Courts and Tribunals Service) refused to fund them.
The High Court considered the matter and ordered the HMCTS to pay for 50 hours of advocacy.
Right to participate and must be fair
The legal point is that parents have a right to participate fully in the process, and that the process must be fair. (Article 6 of the Human Rights Act protects our right to a fair trial).
If parents need an advocate to be able to communicate effectively, to understand and process information and to convey their own wishes and views then they should have an advocate at the earliest stage. If local authorities do not wish to be in breach of a family’s rights under the Human Rights Act 1998 and the Equality Act 2010, then they will need to ensure that an advocate is appointed at the earliest stage, where a parent with a learning disability needs one in order to communicate and participate effectively.
Statutory Advocacy
Local authorities tend to refer to “statutory advocacy” meaning only those advocates appointed/funded under the provisions of the Mental Capacity Act and Mental Health Act and Care Act. However, it is well worth reminding that the Equality Act and the Human Rights Act are statutes too.
Mr Justice Keehan said: “In my judgement that there is 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. 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.”
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