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see also Part 7

# Practice Direction – Litigation Friends This Practice Direction supplements Part 7, section 1 of the Family Procedure (Adoption) Rules 2005

## General

### 1.1

In this Practice Direction ‘non-subject child’ means a person under 18 years old who is a party to the proceedings but is not the subject of the proceedings and ‘protected party’ means a party, or an intended party, who lacks capacity (within the meaning of the 2005 Act) to conduct the proceedings.

### 1.2

A protected party must have a litigation friend to conduct proceedings on his behalf (see paragraph 2 for the definition of a litigation friend).

### 1.3

In the proceedings referred to in paragraph 1.2 the protected party should be referred to in the title as ‘A.B. (by C.D. his litigation friend)’.

### 1.4

A non-subject child must have a litigation friend to conduct proceedings on his behalf unless the rule 51 applies.

### 1.5

A child1 who does not have a children’s guardian must have a litigation friend to conduct proceedings on his behalf unless rule 51 applies and any reference to non-subject child in this Practice Direction is to be taken as including a child.

### 1.6

Where –

(1) the non-subject child has a litigation friend, he or she should be referred to in the title to proceedings as ‘A.B. (a child by C.D. his litigation friend)’; and

(2) the non-subject child is conducting proceedings on his own behalf, he or she should be referred to in the title as ‘A.B. (a child)’.

## The Litigation friend

### 2.1

It is the duty of a litigation friend fairly and competently to conduct proceedings on behalf of a non-subject child or protected party. He must have no interest in the proceedings adverse to that of the non-subject child or protected party and all steps and decisions he takes in the proceedings must be taken for the benefit of the non-subject child or protected party.

### 2.2

A person may become a litigation friend of a non-subject child or a protected party –

(a) without a court order under the provisions of rule 54; or

(b) by a court order under rule 55.

### 2.3

In order to become a litigation friend without a court order the person who wishes to act as litigation friend must –

(1) if he wishes to act on behalf of a protected party, file an official copy of the order, declaration or other document which confers his authority as a deputy to conduct the proceedings in the name of a protected party or on his behalf; or

(2) if he wishes to act on behalf of a non-subject child, or on behalf of a protected party without the document referred to in (1) above, file a certificate of suitability in form FP92 –

(a) stating that he consents to act;

(b) stating that he knows or believes that the [applicant][respondent] is [a non-subject child][lacks capacity (within the meaning of the 2005 Act) to conduct the proceedings];

(c) in the case of a protected party, stating the grounds of his belief and if his belief is based upon medical opinion attaching any relevant document to the certificate;

(d) stating that he can fairly and competently conduct proceedings on behalf of the non-subject child or protected party and has no interest adverse to that of the non-subject child or protected party;

(e) undertaking to pay any costs which the non-subject child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the non-subject child or protected party; and

(f) which he has signed in verification of its contents.

### 2.4

Paragraph 2.3 does not apply to the Official Solicitor, an officer of the Service or a Welsh family proceedings officer.

### 2.5

The court officer will send the certificate of suitability3 –

(1) in the case of a non-subject child (who is not also a protected party) to one of the non-subject child’s parents or guardians or if there is no parent or guardian, to the person with whom the non-subject child resides or in whose care the non-subject child is; and

(2) in the case of a protected party to the person who is the attorney of a registered enduring power of attorney, donee of a lasting power of attorney or deputy or if there is no such person, to the person with whom the protected party resides or in whose care the protected party is.

### 2.6

The court officer is not required to send the documents referred to in paragraph 2.3(2)(c) when he sends the certificate of suitability to the person to be served under paragraph 2.5.

### 2.7

The litigation friend must file either the certificate of suitability or the authority referred to in paragraph 2.3(1) at a time when he first takes a step in the proceedings on behalf of the non-subject child or protected party.

## Application for a court order appointing a litigation friend

### 3.1

Rule 55 sets out who may apply for an order appointing a litigation friend.

### 3.2

An application should be made in accordance with Part 9 and must be supported by evidence.

### 3.3

The court officer must serve the application notice –

(1) on the persons referred to in paragraph 2.5; and

(2) where the application is in respect of a protected party, on the protected party unless the court directs otherwise.

### 3.4

The evidence in support must satisfy the court that the proposed litigation friend –

(1) consents to act;

(2) can fairly and competently conduct proceedings on behalf of the non-subject child or protected party;

(3) has no interest adverse to that of the non-subject child or protected party; and

(4) undertakes to pay any costs which the non-subject child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the non-subject child or protected party.

### 3.5

Paragraph 3.4(4) does not apply to the Official Solicitor, an officer of the Service or a Welsh family proceedings officer.

### 3.6

The proposed litigation friend must satisfy the conditions in paragraphs 3.4(1), (2) and (3) and may be one of the persons referred to in paragraph 2.5 where appropriate, or otherwise may be the Official Solicitor, an officer of the Service or a Welsh family proceedings officer. Where it is sought to appoint the Official Solicitor, an officer of the Service or a Welsh family proceedings officer, provision should be made for payment of his charges.

## Change of litigation friend and prevention of person acting as litigation friend

### 4.1

Rule 56(1) states that the court may –

(1) direct that a person may not act as a litigation friend;

(2) terminate a litigation friend’s appointment; or

(3) substitute a new litigation friend for an existing one.

### 4.2

Where an application is made for an order under rule 56(1), the application notice must set out the reasons for seeking it. The application must be supported by evidence.

### 4.3

Subject to paragraph 3.5, if the order sought is the substitution of a new litigation friend for an existing one, the evidence must satisfy the court of the matters set out in paragraph 3.4.

### 4.4

The court officer will serve the application notice on –

(1) the persons referred to in paragraph 2.5; and

(2) the litigation friend or person purporting to act as litigation friend.

## Procedure where the need for a litigation friend has come to an end

### 5.1

Rule 58 deals with the situation where the need for a litigation friend comes to an end during the proceedings because either –

(1) a non-subject child who is not also a protected party reaches the age of 18 (full age) during the proceedings; or

(2) a person who was a protected party regains or acquires capacity (within the meaning of the 2005 Act) to conduct the proceedings.

### 5.2

The court officer will send a notice to the other parties informing them that the appointment of a non-subject child or protected party’s litigation friend has ceased.

### 5.3

A non-subject child who reaches full age will subsequently be described in the proceedings as ‘A.B. (formerly a child but now of full age)’.

### 5.4

Where a person who was a protected party regains or acquires capacity (within the meaning of the 2005 Act) to conduct the proceedings, an application under rule 58(3) must be made for an order under rule 58(2) that the litigation friend’s appointment has ceased.

### 5.5

The application must be supported by the following evidence –

(1) a medical report indicating that the protected party has regained or acquired capacity (within the meaning of the 2005 Act) to conduct the proceedings

(2) a copy of any relevant order or declaration of the Court of Protection.

## Footnotes

1. ‘child’ means a person under the age of 18 years who is the subject of the proceedings, and in adoption proceedings, also includes a person who has attained the age of 18 years before the proceedings are concluded.
2. See rule 54(4)(b).
3. See rule 54(5).

Published by TSO on behalf of the Ministry of Justice

Applications to reproduce the material in this value added publication should be addressed to Office of Public Sector Information, Information Policy Team, Kew, Richmond, Surrey, TW9 4DU.

An application can be made via the OPSI website (opens in a new window) or by e-mailing: licensing@opsi.gov.uk

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