A submission during a family court application hearing that it was a party’s European Convention right to have a lay advocate suggested a ‘fundamental misunderstanding’ of Article 6, a judgment has said.
In Walsall Metropolitan Borough Council v Mother & Ors (Lay Advocates; Article 6), Mrs Justice Lieven said it ‘would be useful’ to give judgment on the extent to which Article 6 – the right to a fair trial – entitles parties to legal or lay advocate support in family court proceedings, following the submission made on behalf of the father in the case. The substantive application in the case centres on a care order for a six-month-old. All parties were represented.
Counsel for the father confirmed a statement by a social worker that the father had said he did not currently want a relationship with the child was correct. The father ‘did not wish to contest the care plan and did not seek contact, in any form, with the child’, the judgment said.
It added: ‘Miss [Victoria] Flowers [for the father] said that these were the father’s clear instructions, after having the benefit of legal aid and a lay advocate paid for by the [local authority].
‘I asked Ms Flowers how, in the circumstances, there was any possible justification for the appointment of a lay advocate and she submitted that it was the father’s “Article 6 right” to have a lay advocate. This suggested such a fundamental misunderstanding of Article 6 that I decided it would be useful to give a judgment on the extent to which Article 6 entitles parties to legal or lay advocate support in Family Court proceedings.’
The judge said it was ‘clear’ from case law and the facts of the case that the father has ‘no right pursuant to Article 6 to a lay advocate.
‘Firstly, there is no “dispute”…because the father’s position is not contentious. He is not seeking to assert any Article 8 right to family life or any other civil right because he is not disputing the making of the order, or any of its provisions. Therefore on the basis of the caselaw, Article 6(1) simply does not apply.
‘Having a lay advocate cannot in any rational sense be said to be “indispensable” for effective access to the court given that he is not seeking to assert a case in court.’
Refusing the application, the judge said it did not mean the father was ‘not entitled to appropriate assistance when the application was made to ensure he made his decision not to oppose the special guardianship order with proper advice which he understood’.
She added: ‘It is essential that any such decision, which is potentially life changing for the parent and the child, must be made on the basis of properly understood professional advice. But that is an entirely different issue from whether there is an entitlement under Article 6 to a lay advocate once that decision has been properly made.’
