Q&As

In private law children proceedings under section 8 of the Children Act 1989, if a party is thought to lack capacity to litigate, is there guidance as to how the court would determine the issue of whether to appoint a litigation friend if that party refuses to comply with expert assessment?

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Produced in partnership with Katherine Illsley of 4 King’s Bench Walk
Published on: 30 January 2018
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A person must be assumed to have capacity unless it is established that they lack capacity (section 1 of the Mental Capacity Act 2005 (MCA 2005)). A person lacks capacity in relation to a matter 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.

Where there is significant doubt as to whether a party to proceedings lacks capacity the proceedings should not continue until that doubt has been resolved by the court. The court itself

Katherine Illsley
Katherine Illsley

4 King’s Bench Walk

Katherine’s family practice covers matrimonial finance, TOLATA, Schedule 1, and private law children proceedings. She has experience acting for local authorities, guardians and parents in public law children cases, including in cases involving allegations of non-accidental injuries.

Katherine also is regularly instructed in housing and property work, and due to the frequent crossover with family law has a particular interest in cases involving trusts.

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Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Litigation friend definition
What does Litigation friend mean?

A person who acts on behalf of a minor or protected party during legal proceedings.

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