At a workshop on the rights of persons with disabilities with national human rights structures (ombudsman offices and national human rights institutions) in the Council of Europe in Kiev in May, two cases currently pending before the European Court of Human Rights were brought to my attention. The first case, Gauer v France, relates to the sterilisation of young women with disabilities, and the second case, RP v UK, concerns the removal of a child with physical disabilities from the care of its mother (a young woman with intellectual disability) without her consent to the adoption of the child.

In Gauer v France, five young women with mental disabilities who had been placed under guardianship underwent surgery for the purpose of sterilisation without their consent between 1995 and 1998. The facts of the case as outlined in the ECHR’s communication states that:  “Their consent was not required for these interventions and young women were not informed of the nature of them.” It is unclear from the facts of the case whether the guardianship judge or another official authorised the performance of the surgery. Unlike other similar sterilisation cases involving young disabled women (e.g. Marion’s case in Australia and the Ashley X case in the US) the parents of the women did not authorise, or attempt to authorise the sterilisation.

A non-governmental organisation APAJH (association for adults and youth with disabilities) filed a complaint about the sterilisation of these women with the Tribunal de Grande Instance in Sens and a criminal investigation followed; however, the tribunal dismissed the allegations of criminal offence on the basis that the surgery was not illegal in nature and that the lack of consent by the women had no influence on the criminal offence in question. In the women’s case before the ECHR they are alleging a breach of Article 3 (which prohibits torture, inhuman, degrading treatment or punishment), Article 6 (on access to the courts), Article 8 (on private and family life), and Article 14 (on non-discrimination).

In other case, RP, a young mother with “a significant learning disability,” gave birth to a child (KP) who had serious health difficulties in May 2006, “which required skilled day to day care and management.” Following assessments of RP and some of her family members, social workers found that none had the skills required to care for KP. Therefore, KP was placed in foster care under an interim care order. RP attempted to instruct a solicitor to act for her in placement order proceedings concerning her child but was referred to the Official Solicitor based on the report of a clinical psychologist.

 

The psychologist’s report stated that RP “will find it very difficult to understand the advice given by her solicitor. She will not be able to make informed decisions on the basis of this advice, particularly when this involved anticipating possible outcomes.” RP continued to assert her capacity to instruct a solicitor, and argued that she was developing the skills necessary to care for her child, although subsequent reports prepared by the psychologist concluded that it would not be possible for RP to care for KP unless another “competent adult” was present at all times. Since no family member was judged to be suitable to provide the support RP required to care for her child, the local authority sought to have KP adopted outside the family. The Official Solicitor (who acts in England and Wales for persons ‘lacking mental capacity’ and ‘unable to represent themselves’ where no other person is able and willing to act) acted for RP in the care and placement proceedings, and did not object to the making of care or placement orders although the court was informed of RP’s objections to the making of any order. At this time, the Official Solicitor was not aware that RP had continued to assert her capacity to instruct a solicitor, and later stated that if he had known this, he would given her the opportunity to have her capacity re-assessed. Following the hearing in August 2007, the judge dispensed with RP’s consent to the placement order and made a care order and a placement order.

 

RP appealed to the Court of Appeal in 2008, with the assistance of the pro bono unit of the Bar Council and with John Hemming MP and her brother, AP as McKenzie friends. She argued that she had not realised that the Official Solicitor would be representing her until after the hearing, that the involvement of the Official Solicitor was unlawful as she had capacity to instruct her own solicitor, and that an incorrect test had been used to assess her capacity. Throughout these appeals, RP also asserted that KP’s health had improved, since the last assessment of her health needs in 2007, and that she would now be able to care for her. However, the Court of Appeal dismissed RP’s claims and refused leave of appeal to the House of Lords.

 

RP’s case to the European Court of Human Rights alleges a breach of Articles 6 (access to justice) and 10 (freedom of expression) due to the appointment of the Official Solicitor, which prevented RP from presenting her own case, and from challenging the facts stated by the local authority, in particular, the psychiatrists report on her capacity. A breach of Article 8 is also alleged on the grounds that the placement order for KP’s adoption outside the family violates the right to family life. Breaches of Articles 13 (right to an effective remedy) and 14 (non-discrimination) are also alleged.

Both these cases may require the Court to look beyond its jurisprudence to date in order to give a comprehensive interpretation of the Convention which goes to the heart of the issues in question: capacity and decision-making, perceptions of and attitudes towards people with disabilities. The Court may well turn once more to the UN Convention on the Rights of Persons with Disabilities for guidance in interpreting Article 8 of the European Convention on Human Rights, as it did in the case of Glor v Switzerland. In Gauer, while there is a significant body of ECHR case law on Article 6 which may prove useful, the core issue is one of legal capacity and the barriers in bringing these cases to court in the first place, which may require more detailed consideration of Article 12 of the UN CRPD. Article 12 also goes to the heart of the RP case, and it would be highly significant if the European Court were to refer to the obligation it places on states to provide ‘support to persons with disabilities in the exercise of their legal capacity’ – as this also seems to be one of the missing pieces in the UK’s case. As discussed at the workshop in Kiev, it is also worth noting that any national human rights structure accredited with the Council of Europe can make an intervention in such cases to the European Court of Human Rights – and such interventions, which provide the Court with convincing arguments on the use of the CRPD as an interpretive tool for the ECHR may be particularly helpful.