In this blog Senior Associate Mariko Wilson examines the impact that mental capacity has on family law proceedings.

As family lawyers we deal on a daily basis with people in a state of distress, as well as those suffering with mental health issues (at times brought on as a result of the inevitable stress that comes with family breakdown). With changes in social trends we are also increasingly advising elderly clients as the number of “silver divorces” rise. As a result, family lawyers occasionally find themselves in situations where questions arise as to the capacity of their client. But what checks and balances are in place to ensure that our most vulnerable clients are protected, and what is the procedure to ensure that such client’s interests are properly represented within proceedings?

Mental Capacity

Pursuant to s2. of the Mental Capacity Act 2005, a person lacks metal capacity if at the material time he or she is unable to make a decision for himself 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.

For the purposes of s.2, a person is unable to make a decision for himself if he is unable:

(a)     to understand the information relevant to the decision,

(b)     to retain that information,

(c)     to use or weigh that information as part of the decision making process, or

(d)     to communicate his decision (whether by talking, using sign language or any other means).

As such, the question of capacity must be determined on a decision by decision basis. The fact that an individual lacks the capacity to make a particular decision at a particular time, does not necessarily mean that they will lack the capacity to make that same decision at a later stage, or indeed that they lack the capacity to make another decision at the point in time in question.

If you are unsure as to whether your client lacks capacity, the first step would normally be to discuss this with the client him/herself and ask for their permission to contact their GP to carry out an assessment.

What if my client is found to be lacking in capacity?

To understand how this will affect on-going proceedings and how to ensure your client’s interests can continue to be effectively represented, reference must be had to Part 15 of the FPR.

Rule 15.2 states that a person who lacks capacity to conduct the proceedings (a “protected party”) must have a litigation friend to conduct the proceedings on his or her behalf.

Rule 15.3 (1) of the FPR states that until the protected party has appointed a litigation friend:

“a person may not without the permission of the court take any step in proceedings except:

(a) filing an application form; or

(b) applying for the appointment of a litigation friend,

thus essentially bringing the proceedings to halt.

Furthermore, Rule 15.3 (3) provides that any step taken before a protected party has a litigation friend has no effect unless the court orders otherwise.

This is fundamental to ensuring that the protected party is not prejudiced pending appointment of a litigation friend on their behalf.

Who should the litigation friend be?

The expectation of the Official Solicitor is that they will only be invited to act for the protected party as litigation friend if there is no other person suitable or willing to act. Generally speaking it will therefore be necessary to look to the protected parties’ friends or family, or a member of their care team for a suitable candidate. The role of litigation friend can be an onerous one (particularly within contentious family proceedings) and any prospective candidate will need to be informed of such.

Pursuant to Part 15.4 of the FPR, a person with authority as a deputy is entitled to be the litigation friend of the protected party (see section 16(2)(b) of the Mental Capacity Act 2005 for the definition of deputy). Alternatively if there is no authorised deputy, a person may act as a litigation friend if (rule 15.4 (3)):

(a) they can fairly and competently conduct proceedings on behalf of the protected party;

(b) they do not have any interest adverse to that of the protected party; and

(c) they undertake to pay any costs which the protected party may be ordered to pay in relation to the proceedings (subject to any right they may have to be repaid from the assets of the protected party).

These conditions often mean that in contested family proceedings, other family members may not be the best choice of litigation friend.

A litigation friend may be appointed under an order (made of the Court’s own volition or upon application by a party to proceedings/prospective litigation friend) so long as the prospective litigation friend consents (rule 15.6). A litigation friend may also be appointed without an order by filing a Certificate of Suitability in form COP22 (Rule 15.5). In either event the Court must be satisfied that the prospective litigation friend complies with the conditions set out above at rule 15.4 (3).

The Court also has the power under rule 15.7 to direct that a particular person may not act as a litigation friend, to terminate a litigation friend’s appointment or appoint a new one in substitution for an existing one.

It should be noted that the identity of any proposed litigation friend is a matter for the person lacking capacity and his or her legal team. It is not an inter partes issue.

Conclusion

Part 15 of the FPR should be the starting point for any family lawyer faced with a client (or indeed the spouse of a client) who lacks capacity. The rules provide numerous checks and balances to ensure that vulnerable clients are protected and careful attention should be paid to these rules when attempting to appoint a litigation friend for a client (either by, or without a court order) so as to minimise any delay.

This article first appeared in the Solicitors Journal Half Year Review 2017 and is reproduced by kind permission.

Mariko Wilson is a senior associate at Family Law in Partnership. She handles all aspects of private family law and has a broad range of experience, frequently acting for high net worth individuals in financial relief and divorce proceedings as well as acting in children matters. Mariko has acted on a number of complex cross border financial matters, often advising non tax resident and non tax domiciled individuals, entrepreneurs and individuals from the financial sector. She also has experience in dealing with property claims brought by third parties and unmarried cohabitants under the Trusts of Land and Appointment of Trustees Act 1996. Mariko is experienced in dealing with cross border private children law matters particularly proceedings where one parent seeks to remove a child from the jurisdiction contrary to the wishes of the other. She also advises on financial claims on behalf of the children of unmarried parents under Schedule 1 of the Children Act, including in a cross border context. Contact Mariko at E: mw@flip.co.uk or T: 020 7420 5000.