Capacity Issues in Family Litigation: The Lights Are Not Out!

Talking Family Law - The Resolution Podcast

We are joined by Joseph O’Brien of St Johns Buildings and Laura Flanagan of Burgess Mee to discuss how to manage cases that involve capacity issues.

Laura has recently co-authored an article with Maisie Lockyer on this issue:

https://financialremediesjournal.com/content/family-proceedings-and-litigation-capacity.ec7c993244094031bbcb75338ef9c29e.htm

Unfortunately, court commitments meant Maisie was unable to join us for the recording.

Joe tells us that the Mental Capacity Act 2005 is the basis on which all capacity assessments should be undertaken. He reminds us that there is a presumption of capacity, but the presumption of capacity can be rebutted. The test is set out in s.2(1):

2. People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he 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.

Laura directs us to the Official Solicitor’s website, which includes guidance notes and the pro forma for the Certificate as to Capacity:

https://assets.publishing.service.gov.uk/media/63e3b03ad3bf7f172ccae151/capacity-to-conduct-proceedings-certificate.pdf

Joe reminds us that capacity involves a two-stage test: the first stage considers whether the person is unable to make the decision, and the second examines whether that inability is caused by an impairment of the mind or brain, as per A Local Authority v JB (Rev1) [2021] UKSC 52

https://www.bailii.org/uk/cases/UKSC/2021/52.html

We also discuss what should happen when the protected parties have fluctuating capacity. Laura and Joe remind us that you need to make an application to terminate the appointment of the litigation friend if your client regains capacity, but you must apply for the litigation friend to be reappointed if they lose capacity again.

Finally, we discuss how the Court makes the decision about whether the protected person should give evidence. Joe reminds us of the practice direction on participation of vulnerable witnesses

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-3aa-vulnerable-persons-participation-in-proceedings-and-giving-evidence#1