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Capacity carefully considered: Family Justice Council 2018 Guidance published

Home » News » Capacity carefully considered: Family Justice Council 2018 Guidance published

The Family Justice Council recently published new guidance for judges and lawyers working within the Family Court entitled ‘Capacity to Litigate in Proceedings involving children’. The Guidance offers both legal and practical advice aimed at assisting the Family Court to address issues of mental capacity in parents as a priority. The hope is that this will enable cases involving children to be dealt with fairly, justly and without significant delay.

Under the Family Proceedings Rules 2010, someone who lacks the mental capacity to conduct proceedings (within the meaning of the Mental Capacity Act 2005) is known as a ‘protected party’. A ‘protected party’ cannot conduct litigation either as a litigation friend or through a solicitor. As Sir James Munby, President of the Family Division, sets out in his forward, it is therefore “essential for the proper administration of family justice that those who lack capacity to litigate in the Family Court are quickly identified, assessed, and supported.”

The expectation of the Guidance is that parties in public law proceedings are likely to be represented, and those in private law proceedings are unlikely to be. As a reflection of this, the Guidance is broken down into separate sections dealing respectively with public law proceedings and private law proceedings.

The public law section first provides guidance to local authorities to assist them in dealing with capacity at the pre-proceedings stage. It then goes on to provide advice to the court, legal representatives, and also litigation friends when capacity issues are identified after proceedings have been issued. The Guidance also includes a short section dealing with protected parties giving evidence. The private law section provides guidance to the court in identifying and resolving mental capacity issues after a C100 application has been issued. This section provides guidance in respect of appointing a litigation friend (including the Official Solicitor) and in respect of obtaining legal aid funding for the proceedings.

These Guidance also very helpfully includes a number of appendices which form practical aids for the court and lawyers. The aids include: appointing a litigation friend (including the Official Solicitor); drafting a standard form certificate of capacity; drafting letters to independent experts and/or treating clinicians for public law proceedings; drafting letters to friends or family member of an unrepresented person whose capacity is in question; advice in respect of the protected party applying for legal aid; and draft orders in respect of when the Official Solicitor is being invited to act as litigation friend, and also for giving directions for disclosure against third parties.

This carefully considered new guidance on mental capacity, which combines both legal advice and practical aids, is likely to be enormously helpful to the court and family lawyers in dealing with this issue into the future.

Authored by Rachel Cooper.

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