Capacity to litigate—family proceedings
Capacity to litigate—family proceedings

The following Family guidance note provides comprehensive and up to date legal information covering:

  • Capacity to litigate—family proceedings
  • Mental capacity
  • Expert evidence as to capacity
  • Ability of protected party to give evidence as a witness
  • Issues as to the capacity of another party
  • Capacity to enter into a compromise

This Practice Note considers the approach taken by the family courts in relation to issues of capacity and how capacity may be assessed including expert evidence. In the context of family proceedings, capacity may be relevant as to both capacity to litigate and to compromise proceedings, including a consent order. It is primarily concerned with issues as to the capacity of an adult, or regarding a child aged 16–17 who is the subject of the proceedings, or a party to the proceedings, and who is likely to lack relevant decision making capacity at age 18. In relation to the representation of children, see Practice Note: Children as parties to public law proceedings. Wider considerations as to capacity and family relationships are considered in the Practice Note: Capacity to marry, cohabit and have sexual relations.

For practitioners, issues of capacity may arise in relation to either their own client or regarding another party. Where a party has a solicitor, it is often that party’s solicitor who first identifies that the party may lack litigation capacity. If there is reason to believe that a party may lack capacity to conduct the proceedings at any time during the course of the proceedings, the court must be notified and directions sought to ensure that the issue is investigated without delay. However, the presumption of capacity should