If I said that my sole encounter with The Art of War by Sun Tzu was in civil litigation classes at law school, would you furrow your brow or nod approvingly? Given the then recent inception of the Woolf reforms, with their deliberate shift in style from ambush to openness, talk of combat strategy may seem like an unreliable memoir and yet the concept of ‘doing battle’, rightly or wrongly, remains a common way of thinking about litigation. The result? An instinctive belief that there should be ‘equality of arms’ before we let battle commence; that all parties should ‘lawyer-up’, to be in with a chance.
This was, presumably, the thinking of Ms Kumar when she decided to take on the local authority in Hillingdon over her son’s Education Health and Care Plan (EHCP): Kumar v London Borough of Hillingdon . Although she hoped to avoid protracted formal litigation by taking the dispute instead to mediation, she wanted to bring a lawyer to that mediation for support. The council refused and the prospect of mediation stalled. This, ironically, led to Ms Kumar initiating formal judicial review proceedings to have the refusal declared unlawful.
Under the Children and Families Act 2014, families in dispute with their local authority over an EHCP have a right of appeal to the First-tier Tribunal but there is also a right to mediation. Where a parent invokes that right, the local authority must arrange for mediation, ensure the mediation is conducted by an independent person, and participate in the mediation.
At issue in this case was the interpretation of the Special Educational Needs and Disability Regulations 2014 made under the Act. Regulation 38(1) stipulates that those who can attend the mediation include “(b) any advocate or other supporter that the child's parent or the young person wishes to attend the mediation” and “(e) any other person, with the consent of all of the parties … or, where there is no such agreement, with the consent of the mediator”. The Government’s Code of Practice provides that, for mediation to work well, “generally, legal representation should not be necessary at the mediation, but this will be a matter for the parties and the mediator to agree” while the allied Guide for families says “You can bring a friend, adviser or advocate to help you”.
Hillingdon argued that mediation was, by definition, an informal and non-legalistic process; that an “advocate” under (b) above (not defined in the regulations) did not include a lawyer; and that legal representation would accordingly only be permitted, given that they did not consent to this, if the mediator consented, in accordance with (e) above. Ms Kumar challenged this position as unlawful.
While Ms Kumar’s legal team argued that a lawyer was an “advocate” and “supporter” par excellence and that professional lawyers in the field of children’s law should not be equated with duelling confrontationists, Hillingdon insisted that a lawyer-advocate was likely to be “objectionable”, contrary to the spirit and place of mediation in the statutory scheme, and likely to introduce a combative rather than a collaborative approach. In an interesting role-reversal, they also said it would “put a strain on local authority resources in requiring the deployment of their own legal team to ensure equality of arms”.
The High Court (Mrs Justice Collins Rice) declined to accept the assertion that her decision rested entirely on the meaning of the word “advocate”. Instead she considered whether the local authority had a right to control whom a parent brought to the mediation to support them (“any advocate or other supporter”) and concluded that they did not and that the local authority had acted unlawfully in refusing to mediate because Ms Kumar proposed to have her lawyer present. A short extract from the judgment explains the Court’s thinking, expressed in no uncertain terms, better than any attempt to paraphrase:
“The whole scheme of the Act in general, and of the Part dealing with special educational needs in particular, is to support and protect the interests of needful families and children in contexts in which they are vulnerable and at a disadvantage… Nowhere in this scheme is there any suggestion that a local authority is entitled to control whom a parent wishes to bring to an independent mediation for support. The fact that it is someone the parent wishes to have there for that purpose is enough, and important in its own right. That person - whoever they are - may or may not prove an asset to the mediation process or make the mediator's job any easier. That is not the point. The point is that the parent is not alone, and has someone there of their choosing, a choice entirely up to them.
Although the Act makes local authorities an important part of the solution to the needs of families with vulnerable children, it requires them to be mindful of the inevitable risk that they become, or are seen to become, part of the problem. Local authorities have huge powers over the lives of families with children who have special needs, making decisions with potentially lifelong consequences. Where parents are unhappy with those decisions, there is a fundamental and frightening inequality of power. That is why there is not only a legal right of appeal, and a legal right to independent mediation, but also a legal right to have someone there for moral support in whatever way a parent wishes – emotional strength, help with understanding what is going on, or help with articulating what they want to get across. Parenting a child with special needs is demanding enough; disputing with a local authority is daunting for the most confident and best-equipped parent; the right to have a supporter is just that. It does not matter who they are, lawyer or not. It is none of the local authority's business.”
It is clear that the Court saw the scales of power here as weighted heavily in favour of the local authority. Regulations had been put in place to seek to redress that imbalance and individual provisions should not therefore be interpreted so as to undermine that aim. Although this particular decision is borne out of a SEND dispute between parent and local authority (and would presumably be applied equally where a Clinical Commissioning Group, additionally or instead, were involved in such a mediation), the influence of the case may well spread its wings into areas beyond SEND where individuals seek to ‘lawyer-up’ before taking on an emanation of the state. Health bodies, faced with similar requests, albeit in other contexts, would be wise to pay heed to the judicial Zeitgeist before they rush automatically to say No.