Date published: February 27, 2020
Why independent advocates are ‘like interpreters’ in court
Every person has the right to participate fully in any court proceedings. This is so that you will have the right to a fair trial, as outlined in the Human Rights Act 1998. For some people, this is more challenging than for others. Maybe you don’t speak the same language as that spoken in the court, or maybe you have difficulties understanding and processing the information you have been given.
In British courts, if you do not speak English you have the right to an interpreter. If you need help to be able to communicate effectively, to understand the processes of the court, or to express your own wishes and views you have the right to have an independent advocate under the Human Rights Act and the Equality Act 2010.
A judge rules that advocates are like interpreters
Whilst interpreters are routinely paid for by Her Majesty’s Courts and Tribunals Service (HMCTS), until recently HMCTS could refuse to pay for a person’s independent advocate.
This is what happened to two young parents with learning difficulties in Birmingham. Last August, the parents were deemed to lack capacity to care for their baby, and an interim care order was made. A doctor then advised that advocates be appointed to support the two parents at formal meetings, pre-proceedings meetings and all court hearings. The Legal Aid Agency (LAA) and HMCTS both stated that they would not fund the costs of these advocates. Consequently, the case known as Re C (Lay Advocates) was sent to the High Court.
In the High Court, the judge Mr Justice Keehan ruled that there is ‘no material difference’ between the provision of interpreter and an advocate. According to the judge, this is because ‘they each enable and support parties and witnesses to communicate and understand these proceedings.’
Mr Justice Keehan stated that public law solicitors had neither the time nor the skills and experience to ensure that the parents understood the information and were able to communicate their wishes effectively. The judge noted that since HCMTS routinely pays for interpreters, he could not see ‘any principled reason why it should not also pay for the services of lay advocates in an appropriate case.’
Consequently, the HMCTS has been ordered to pay for 50 hours of advocacy for the two parents in the case.
What does this mean for Shared Lives?
Informal advocacy on behalf of those being supported in Shared Lives arrangements is an integral part of Shared Lives person-led care model. Shared Live carers and schemes listen to the views of those being supported and make sure their voices are heard on the issues that are important to them.
Local Authorities often refer to ‘statutory advocacy’, which means that advocates are appointed and funded under the Mental Capacity Act and Mental Health Act and Care Act. The outcome of Re C (Lay Advocates) demonstrates how the Equality Act and the Human Rights Act can also be used to support a person’s right to an advocate.
If there is a circumstance in which a person would be assigned an interpreter paid for by a public body, then a person also has the right to an advocate and a strong case for this being paid for. Everyone has the right to communicate effectively.
