Capacity To Litigate In Family Proceedings

Under part 15 of the Family Procedure Rules 2010, a person who lacks capacity is a protected party and must have a litigation friend to conduct proceedings on their behalf. Where no person known to the party is willing to assist as a litigation friend, the Official Solicitor may be appointed. 

What is an Official Solicitor?

The Official Solicitor is an officer of the Supreme Court. The Official’s Solicitors staff includes experienced solicitors who represent minors and others who lack capacity in legal proceedings.

It is likely that the Court will need to obtain expert evidence of the party’s lack of capacity in order to determine what party they may play in any proceedings. At any point throughout proceedings, a party’s capacity may change and a litigation friend may no longer be required.

Under the Mental Capacity Act 2005, a person lacks capacity if, at the material time, they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary. Any decision as to whether a person lacks capacity must be decided on the balance of probabilities. Every person must be assumed to have capacity unless it is established that they lack capacity.

If there is reason to believe that a party may lack the capacity to conduct proceedings, then notice must be given to the Court and directions sought to investigate the issues without delay. Where a person has identified difficulties such as learning difficulties or mental illness, it should not automatically lead to an investigation of that party’s capacity to litigate.

Whilst a party may not have the capacity to conduct litigation, they may still have the capacity to make other decisions. A party should not be regarded as unable to make a rational decision solely because a decision they make was one that would be made by another person, and equally just because a party makes a rational decision, they should not be regarded as having the capacity.

HC (by her litigation friend) v FW

In the case of HC (by her litigation friend) v FW, the wife was found to lack litigation capacity, which was queried by the husband who highlighted that she had the capacity to grant a lasting power of attorney to her son and to transfer her interest in property to him, but after considering medical evidence the Court was satisfied that the assessment of capacity to litigate had been properly undertaken and that it was not diminished nor undermined by the wife’s capacity to make decisions in other domains of her life.

Where it is identified that a person within proceedings is a protected party, no steps can be taken to progress matters without the permission of the Court prior to a litigation friend being appointed. Appointing a litigation friend or the Official Solicitor will cause some delay in proceedings, but it is of the utmost importance that steps are taken to ensure a party has the capacity to litigate when proceedings are being brought before the Court or to ensure that an appropriate person is appointed to assist with the proceedings.