A local authority has been ordered to join in mediation with a mother of a child with special needs, after trying initially to stop the process because she wanted a lawyer with her.
In Kumar v London Borough of Hillingdon, Mrs Justice Collins Rice said the council was in breach of its statutory duties by refusing to arrange and participate in mediation over a care plan for the claimant’s son.
She had wanted to bring a lawyer with her for support, but Hillingdon refused to agree: to date there has been no mediation and the mother submitted this was unlawful.
The case centred around the interpretation of the Children and Families Act 2014, which makes provision for families in dispute with their local authority and gives them a right to mediation. The act provides that parties may attend the mediation along with ‘any advocate or other supporter’ that the parents wish to attend.
The court heard that Hillingdon rejected the mother's request for mediation on the basis she wanted a lawyer present and the council saw mediation as an ‘informal, non-legalistic, accessible and simple disagreement settlement process’. It said that if a parent wishes to bring a lawyer to mediation, then the regulations require the consent of the local authority.
Hillingdon submitted in court that a lawyer advocate was likely to be ‘objectionable’ and ‘contrary to the spirit’ of mediation, because they would introduce an adversarial approach and put a strain on council resources by forcing it to deploy its own legal team.
However the judge said the starting point was that legislation created a legal right to mediation and put a legal duty on a local authority to participate. The right of a family to bring a chosen supporter with them was key to the exercise of the right to mediation itself.
She said it was ‘entirely wrong-headed’ to equate professional lawyers with confrontation, noting that lawyers can and do act as mediators and support families in non-adversarial ways.
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