Children(reproduced in full in appendix B)(reproduced in full in appendix A)Litigation friends:child, required byChildrenChild:litigation friend required byLitigation friends:child, required byChildrenChild:litigation friend required by(reproduced in full in appendix B)Litigation friends:child, required byChildrenChild:litigation friend required byLitigation friends:child, required byChildrenChild:litigation friend required by(reproduced in full in appendix A)Litigation friends:child, required byChildrenChild:litigation friend required by
11.21A child – ie someone under 18
1COPR r6. – who is a party to proceedings but is not P, will require a litigation friend unless the court orders otherwise.
2COPR r141(3)–(4). An application must be made for the court to make such an order; if the application is made by the child, then if a litigation friend has already been appointed to act on their behalf, it must be made on notice to that litigation friend.
3COPR r141(5)(b). It may otherwise be made without notice.
4COPR r141(5)(c). There is no guidance in the MCA 2005, the COPR or PD 17A as to the circumstances under which a court will permit a child to conduct proceedings without a litigation friend.
11.22There are two bases upon which a child may lack capacity to conduct proceedings. The first is on the basis that they are not ‘
Gillick-competent’;
5Ie they do not have sufficient maturity and intelligence to understand the nature and implications of the proposed decision: Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, [1986] 1 AC 112. See also para 11.13 above. the second is because they suffer from a material disturbance or impairment of the mind or brain.
11.23If the concern in respect of the child arises not because of a suggestion that they are in some way suffering from a disability, but rather because of their age, then it is suggested that useful guidance can be found in the approach adopted in the Family Procedure Rules (FPR) 2010,
6SI No 2955, as amended. which also contain a provision for the court to dispense with the requirement that a child be represented by a litigation friend (or a children’s guardian) in certain circumstances. The FPR provide that an application by the child will be granted ‘if [the court] considers that the child has sufficient understanding to conduct the proceedings concerned or proposed without a litigation friend or children’s guardian’.
7FPR r16.6(6). The FPR contain differences to the COPR, not least as they provide that the court can nonetheless require the litigation friend or guardian to continue to play a part in the proceedings, but it is suggested that the approach set down in the FPR is likely to be adopted before the Court of Protection.
11.24If the concern in respect of the child’s ability to participate in the proceedings arises out of a concern that they are suffering from a disability affecting their capacity to conduct litigation, then while the guidance in the FPR does not cease entirely to be relevant, it is suggested that the primary considerations should be those set out at paras 11.11–11.12 onwards above in relation to adults.
11.25Even where an order has been made permitting a child to act without a litigation friend, the court retains the power to appoint a litigation friend if it subsequently appears to the court that it would be desirable for such a litigation friend to conduct proceedings on the child’s behalf. There is no guidance in the MCA 2005, the COPR or PD 17A as to when such a step would be desirable. At least where the appointment of a litigation friend for a child has taken place on the basis out of a concern that they are not sufficiently mature, then by analogy with the FPR
8FPR r16.6(8). it is suggested that a court should be slow to re-appoint a litigation friend save where it has become clear that the child, in fact, lacks the understanding to conduct the proceedings. To do otherwise – for instance, on the basis that the child’s conduct is disruptive – would be to risk depriving the child of a voice in the proceedings; the court has other mechanisms to control such disruptive conduct by way of its case management powers granted it under COPR rr25 and 85 (or COPR Pilot Part 3 where this applies).