CS v FB

Capacity to conduct family proceedings is decision-specific. The threshold for a final declaration of incapacity is high because such a declaration substantially interferes with personal autonomy, but the required capacity may exceed that needed for an ordinary transaction. Under Mental Capacity Act 2005, section 2, capacity depends on whether an impairment or disturbance of mind or brain makes the person unable to make the relevant decision. Where funding and expert evidence create a circular obstacle, the court may make an interim declaration of incapacity under the Family Procedure Rules, enabling a litigation friend to be appointed and further assessment to take place. An interim declaration may be justified by the available evidence, including a party’s failure to engage with proceedings or obtain legal advice.

The applicant father sought the return to Brazil of his seven-year-old daughter, who had been brought to England by the respondent mother. The mother stated that she did not oppose the child’s return and was also prepared to return voluntarily to Brazil. Those positions, together with evidence from social services and difficulties in engaging with professionals, raised concerns about her capacity to conduct the proceedings.

The Official Solicitor investigated but could not act without a capacity determination, while expert assessment could not be funded until incapacity had been established. The central issue was whether the court could make an interim declaration that the mother lacked capacity, enabling the Official Solicitor to act as litigation friend and obtain the evidence required for a final determination.

1. Capacity test. A final declaration that a party lacks capacity to conduct proceedings is a serious intrusion into personal autonomy, so the threshold is relatively high. Capacity is nevertheless function-specific: conducting complex family proceedings requires a different level of capacity from entering a simple commercial transaction. The test in section 2 of the Mental Capacity Act 2005 applied, with the issue determined on the balance of probabilities (para [15]).
2. Procedural powers. Under rules 15.2, 2.3(1) and 15.3(1) of the Family Procedure Rules, a protected party requires a litigation friend and generally cannot take procedural steps until one is appointed. Practice Directions 15A and 15B reinforce the need to determine capacity before directions affecting the party’s role are given, although expert evidence is not invariably required in obvious cases (para [14]).
3. Interim declaration. The court had power under rule 20.2(1)(b) of the Family Procedure Rules to make an interim declaration. That course could break the funding impasse by permitting appointment of the Official Solicitor and securing legal aid, after which expert evidence could be obtained for a final determination. The caution expressed in Baker Tilly v Makar [2013] EWHC 759 (QB) concerned the seriousness of making a final determination without expert evidence and did not address this interim solution (para [16]).
4. Application. The available evidence showed a sufficiently concerning attitude to the serious ramifications of the proceedings. The mother’s failure to engage with the proceedings or seek legal advice justified an interim declaration that she lacked capacity to conduct them. The Official Solicitor was appointed as her litigation friend and was directed to investigate whether the interim declaration should become final (paras [18]-[19]).