In Family Court proceedings; brought to Court by Local Authority Social Workers, parents (or other carers of children) often have vulnerabilities which have to be taken into account by the Court. Such vulnerability can include lacking litigation capacity
I discussed that situation, in some detail, in my last blog. In a nutshell, it relates to an inability to understand what is going on well enough to be able to properly engage in and understand the proceedings.
In such situations, a Solicitor from The Official Solicitors Office will normally come on board to give the parents own Solicitor instructions rather than the parent giving those instructions directly. The official Solicitor will take into account the wishes and feelings of the parent but will not necessarily act in accordance with those wishes and feelings but instead act as thought best by him/her after considering the evidence in the case.
The parents own Solicitor must act on the instructions of the Official Solicitor and not the instructions of the Client but will at all times liaise between the two. At no time does the Official Solicitor meet with or discuss the case directly with the parent.
There are times, however, when the parent, doesn’t accept what is being said about their alleged lack of capacity and until that is resolved by the Court, the Official Solicitor ( or any alternative person) will not be invited by the Court to act for the parent
The Court will already have appointed a Psychiatrist/Psychologist to assess the parents capacity and for the purposes of this blog it is assumed that assessment has taken place and the assessment is that the parent does lack capacity
So, how is it resolved when the parent doesn’t accept the evidence of the Psychiatrist or Psychologist who has assessed him/her to lack capacity?
The fact that an expert assesses the parent to lack capacity does not remove the duty of the court to ensure that a fair process takes place or complete that process if it ignores the views being put forward by the parent.
The fair thing to do is to hold a hearing at which the expert and the parent have the opportunity to give evidence and be cross-examined, lawyers and the parent can then make speeches to the Judge putting their case forward and the Judge can then make a decision. The Court should be reluctant to invite the parent to take an oath as to truth as the parent may not understand the meaning and consequences of it.
If the decision is that the parent does lack litigation capacity then the case will be adjourned and the Official Solicitor will be invited to act for the parent.
If the Court decides that the parent does not lack capacity the case will proceed and the parents Solicitor will continue to take lawful instructions directly from the parent.