High Court rejects application by father for lay advocate in care proceedings, describing “fundamental misunderstanding” of Article 6

The High Court has rejected a father’s application for a lay advocate, after it was submitted that it was his “Article 6 right” to be provided with one in care proceedings relating to his child.

In Walsall Metropolitan Borough Council v Mother Ors [2025] EWHC 929 (Fam), Mrs Justice Lieven concluded: “It is clear from this caselaw and the facts of this case that the Father has no right pursuant to Article 6 to a lay advocate. Firstly, there is no “dispute” (“contestation” in French) 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.”

The father’s application for a lay advocate took place within care proceedings brought by the local authority in respect of a young child, SK, aged 6 months.

Lieven J noted: “HHJ Carter listed the matter before me in the light of the President’s Guidance on the use of lay advocates, intermediaries and cognitive assessments in the Family Court, and the effect of that upon the guidance set out in Re C [Re C (Lay Advocates) [2020] EWHC 1762 (Fam)]. Re C must now be read in the light of the President’s Guidance and of this judgment. That Guidance treats lay advocates as being ‘on all fours with intermediaries’.”

The father, in previous proceedings concerning an older child, had been subject to a cognitive functioning assessment carried out by a forensic psychologist in 2022.

In that assessment, the psychologist had highlighted “various vulnerabilities” of the father.

Whilst stating that she was not of the opinion that he required an intermediary, the psychologist said:

“I believe it important that an Advocate with experience working with clients with mental health and learning difficulties is appointed in this case. An Advocate could help to support their learning and engagement during the Court proceedings, prepare them for meetings, provide support in Court and help to record relevant information to facilitate learning and retention.”

In the present proceedings, counsel for the father made reference to that report, to West Northamptonshire Council v KA [2024] on the use of intermediaries, and to the “compelling reasons” for appointing a lay advocate.

However, Lieven J noted: “Whilst preparing for the hearing I read the final social worker statement. In that, it was stated that the Father had told the social worker that ‘he does not want a relationship with [the child] at the present time’. When I asked [counsel for the Father] about this I was told that that statement was correct. The Father did not wish to contest the care plan and did not seek contact, in any form, with the child. [Counsel 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 LA. [Counsel for the Father] made no suggestion that the Father might change this position.”

She continued: “I asked [counsel for the Father] 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.”

Article 6(1) states:

“1. In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Lieven J noted: “The applicability of Article 6(1) in civil matters depends on:

1) The existence of a “dispute” (in French, “contestation”).

2) The dispute must relate to “rights and obligations” which, arguably at least, can be said to be recognised under domestic law.

3) These “rights and obligations” must be “civil” ones within the meaning of the Convention.

She outlined the “clear difference” between Article 6(3(c)) where in respect of criminal charges there is a right to legal assistance if the individual does not have sufficient means to pay, and Article 6(1), which gives no such automatic right in civil (including family) disputes.

Mrs Justice Lieven said: “In my view, it is clear that the Father has no right pursuant to Article 6 to a lay advocate. Firstly, there is no “dispute” (“contestation” in French) 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.

“Secondly, even if there is a theoretical Article 6 right because an Order may be made concerning his child, his case does not satisfy the legal tests under Article 6 for the provision of legal aid (here for a lay advocate). 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. Therefore the test in Airey is not met.

“Further and in any event, Keehan J’s judgment in Re C is now overtaken by the President’s Guidance and must be read in the light of that Guidance. That alone would have been sufficient to dispense with this application.”

The father’s application was refused.

In January, the President of the Family Division, Sir Andrew McFarlane, issued practice guidance on the use of intermediaries, lay advocates and cognitive assessments in the Family Court.

The Court of Appeal last week handed down a ruling on the appointment of intermediaries in which it said the President’s guidance contained valuable guidance about cognitive assessments.

However, the court also expressed reservations about paragraphs in the guidance on the appointment of intermediaries insofar as there are references to rarity.

Lottie Winson