Litigation friends

Litigation friends are required when a person lacks capacity to participate in court proceedings. This information page will explain who can be a litigation friend, specifically which circumstances require a litigation friend to be appointed and how to apply to be a litigation friend. 

Introduction

An individual who is involved in court proceedings (a 'litigant') must have the capacity in order to conduct those proceedings. In other words, a litigant must be able to participate in the proceedings insofar as being capable to convey their position, complete paperwork and understand the decisions of the court. 

Children under the age of 18 will require an adult to conduct court proceedings on their behalf if they are involved in a family court case. This adult is known as a 'litigation friend'. In exceptional circumstances the court grant an order permitting the child to conduct proceedings without a litigation friend.

A litigation friend will also be necessary for an adult who lacks the mental capacity to conduct their own case. The litigant in the case is known as a 'protected party'.  

Who can be a litigation friend?

There are a number of people who can be appointed to act as a litigation friend. These include but are not limited to:

• parent or guardian
• family member or friend
• solicitor
• professional advocate
• Court of Protection deputy
• Someone who has lasting or enduring power of attorney

It is important to remember that no person, including the Official Solicitor, can be appointed to act as litigation friend without their consent. 

What are the duties of a litigation friend?

According to Practice Direction 15A paragraph 2.1 – ‘it is the duty of a litigation friend to fairly and competently conduct proceedings on the protected party’s behalf’. A litigation friend does not become a 'party to proceedings'. 

A litigation friend must not have interests in the case which are adverse to the interests of the child or protected party and must act in accordance with what is in the best interests of the child or protected party. 

The primary duties of a litigation friend are to:

• make decisions in the best interests of the child or protected party. 
• establish the wishes and feelings of the child or protected party and keep them informed of what is happening in the case
• talk to the solicitor about the status of the proceedings throughout the case, receive advice and provide instructions. 
• pay any costs ordered by the court

How is a litigation friend appointed?

There are two ways in which a litigation friend can be appointed;

1. An individual can apply to court to become someone’s litigation friend, or;
2. The court can appoint a litigation friend if an individual who is party to the proceedings requests this. They can be appointed at the start of the case or at any point during proceedings.

If there is no one suitable or willing to act as a litigation friend then the court may ask an Official Solicitor to step in. The Official Solicitor will need to consent and will only be used as a last resort.

How is an application made to be a litigation friend?

There are two ways in which an individual can apply to become a litigation friend:

1. Provide a copy of the court order, declaration or other document that appoints them as the person's deputy if it gives them permission to act as a litigation friend, or;
2. If they're not a deputy they will need to complete a certificate of suitability (see below). 

Certificate of suitability

The form FP9 will need to be completed. In the case of a child, a copy will need to be delivered in person to the parent, guardian or carer of the child. 

The form FP6 (certificate of service) will also need to be completed and both forms can then be submitted to the family court. 

When does the requirement to have a litigation friend cease?

The answer to this question will depend on whether it concerns a child or a 'protected party'. 

Child

The litigation friend's appointment ceases once the child reaches the age of 18. 

The child in respect of whom the appointment to act has ceased must serve notice on the other parties:

• stating that the appointment of his litigation friend to act has ceased;
• giving his address for service; and
• stating whether or not he intends to carry on the proceedings.

Protected party

Where a protected party regains or acquires capacity to conduct the proceedings, the litigation friend’s appointment continues until it is ended by court order.