Raqeeb, R (On the Application Of) v Begum & Anor

The court has a wide discretion to terminate a litigation friend’s appointment. The relevant questions are whether the person can fairly and competently conduct the proceedings and whether they have an interest adverse to the child.

Familial affection or religious belief does not, without more, disqualify a person from acting as a litigation friend. The court must examine the litigation friend’s conduct, motivation, ability to exercise independent judgment on legal advice and the alleged conflict of interest. A perceived consequence of successful judicial review is insufficient where that consequence depends on unresolved questions of law for the court to determine.

The claimant, a five-year-old child, brought judicial review proceedings through her court-appointed litigation friend. The defendant NHS Trust applied shortly before the final hearing to terminate that appointment under CPR r 21.7(1)(b), or to substitute the Official Solicitor or the child’s parents.

The Trust relied on the litigation friend’s familial relationship with the child, Islamic religious beliefs and opposition to withdrawal of life-sustaining treatment. It argued that she could not objectively assess whether pursuing judicial review was in the child’s interests. The central issue was whether those matters established an inability fairly and competently to conduct the proceedings or an interest adverse to the child.

1. Application dismissed. The Trust’s application to discharge the litigation friend was dismissed. The Trust was ordered to pay the costs of the litigation friend and interested parties, assessed on the standard basis if not agreed.
2. Under CPR Part 21, the court has a wide discretion to terminate a litigation friend’s appointment. The essential requirements are the ability to conduct proceedings fairly and competently and the absence of an interest adverse to the child. The litigation friend must safeguard the child’s interests, understand the nature of the litigation, act under proper legal advice and exercise some independent judgment and objectivity.
3. The court accepted that a family member may act as litigation friend if able to take a balanced and even-handed approach. Familial affection and religious belief are not, in themselves, disqualifying. The Trust produced no evidence that the litigation friend had acted unfairly, incompetently, for an improper motive or without regard to legal advice.
4. The judicial review concerned whether the Trust’s decision not to permit transfer to Italy was unlawful by reference to directly effective EU law. The litigation friend’s religious views about withdrawal of treatment were not relevant to that legal and factual question. Nor was it inevitable that a successful judicial review would prevent a best-interests decision under the Children Act 1989. Whether such a decision remained necessary was a question for the court.
5. The litigation friend’s pursuit of one side of a legal argument did not itself amount to conduct adverse to the child’s interests. The proposed substitution would also cause serious delay immediately before the final hearing. The Trust had not established a material change of circumstances since the original appointment.
6. The court declined to determine more generally whether religious belief could disqualify a litigation friend, because the issue had not been fully argued and was unnecessary to the decision. An indemnity costs order was refused because the application, although unsuccessful and arguably misconceived, was not outside the ordinary and reasonable conduct of proceedings.

Not an appeal. The judgment determined an interlocutory case-management application in pending judicial review proceedings.