D (Children), Re

A court must determine a parent’s litigation capacity by applying the issue-specific, two-stage test in the Mental Capacity Act 2005. A protected party must conduct proceedings through a litigation friend. Expert evidence on capacity must address that statutory test, be properly obtained, and any material conflict must be resolved before the case proceeds.

Serious procedural failures in determining capacity do not inevitably require a retrial. Under the Family Procedure Rules 2010, the court may retrospectively validate steps taken without a litigation friend. The exercise is fact-sensitive. Good faith, absence of manifest forensic disadvantage, the actual quality of representation, and the child’s need for timely permanence may justify validation.

The mother appealed care and placement orders made in respect of her daughter by His Honour Judge Newton in the Ipswich County Court and Family Court on 10 April 2014. The mother had substantial learning difficulties. Earlier proceedings concerning her first child had been conducted with the Official Solicitor as litigation friend.

In the present proceedings, one psychologist assessed the mother as lacking capacity to instruct solicitors. A later cognitive assessment, commissioned without compliance with the expert-evidence procedure and without the earlier substantive report, concluded that she had capacity. Her litigation friend was discharged. The mother was otherwise represented by solicitors and counsel, with her independent advocate continuing to support her.

The appeal concerned whether capacity had been properly determined and, if not, whether the resulting procedural irregularity required a fresh assessment and rehearing.

1. Appeal dismissed. The court granted an extension of time and permission to appeal because the capacity issue had potentially serious procedural and Article 6 implications. It nevertheless confirmed the care and placement orders and directed that the adoption application be expedited.

2. Under Part 15 of the Family Procedure Rules 2010, a party lacking capacity to conduct proceedings is a protected party and must have a litigation friend. Capacity is governed by the Mental Capacity Act 2005. The court must begin with the presumption of capacity and address both the diagnostic threshold and the functional, issue-specific question.

3. The process by which the second assessment was commissioned and acted upon was seriously irregular. No proper application for expert evidence was made. The judge was not given the material necessary to assess whether a further report was necessary. The expert was not properly instructed, did not address the statutory test, and the conflict with the earlier assessment was not identified or resolved. These were not merely pragmatic case-management departures.

4. However, rule 15.3(3) permitted retrospective validation. The court applied the approach in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889 and Bailey v Warren [2006] EWCA Civ 51: the discretion is fact-sensitive, with good faith and manifest disadvantage being important considerations. Dunhill v Burgin [2014] UKSC 18 was distinguished because it concerned an unapproved and seriously disadvantageous compromise by a person who undoubtedly lacked capacity.

5. Here, all concerned acted in good faith. The mother suffered no forensic disadvantage. The outcome and conduct of the trial would have been the same had she been represented formally by a litigation friend, since her advocate in substance continued that supporting role and the case was vigorously contested. The child had also been settled with prospective adopters for over half her life. Validation was therefore just despite the court being unable to determine retrospectively whether the mother had in fact lacked capacity at trial.

• Court of Appeal (Civil Division) — dismissed the mother’s appeal, retrospectively validated the proceedings, confirmed the care and placement orders, and ordered expedition of the adoption application.
• Ipswich County Court and Family Court — His Honour Judge Newton made care and placement orders on 10 April 2014.