Describing family law as stressful is a truism, as the instruction of a family solicitor frequently stems from the breakdown of romantic relationships, placing both financial strain and emotional hardship upon the parties.

The role of a family solicitor is to help their clients to circumnavigate the choppy waters created by these issues, enabling them to move on with their lives. This can often be achieved through amicable, informal negotiation, though some parties may choose to negotiate their settlement under the auspices of a court.

In the vast majority of cases, be that litigated or otherwise, both parties must engage fully in the “process” to ensure that an appropriate settlement is achieved. However, what happens if one party is incapable of actively engaging in that process?

Factors that may limit capability

Mental Health Issues

On occasion, the impact of mental health issues can be so detrimental that it impacts an individual’s ability to litigate or indeed to give instructions. For instance, COVID-19 triggered a 25% increase in the prevalence of anxiety and depression worldwide.

Looking more specifically at family law, a poll of family lawyers in 2019 revealed that feelings of anxiety, depression or other mental health issues appeared to be incredibly common amongst their clients.

Physical Health Issues

Physical issues can arise at any point during a solicitor’s instruction or may exist prior to the parties’ separation.

Individuals may be undergoing treatment for illnesses and conditions such as cancer and strokes that may impact their ability to engage in negotiations or court proceedings effectively. This is both due to the effects of the ailments themselves and also other factors like strong medications, mental health issues and pain.

It has been predicted that stroke incidence in the UK will increase by 60% between 2015 and 2035. Moreover, since the early 1990s, incidence rates for cancer have increased by more than a tenth. These issues are therefore more likely than ever to arise.

Nevertheless, whilst mental and physical health issues can create significant challenges and may limit one’s capability, they do not act as an absolute bar from a party engaging, with the ways to manage this considered below.

Litigation Capacity

An individual’s capability to engage in proceedings should not be confused with their mental capacity.

Section 1(2) of the Mental Capacity Act 2005 makes clear that there is an assumption of capacity unless it is established otherwise.

Where capacity is an issue the solicitor must be clear on both the test for capacity and also on the procedure for appointing a litigation friend, if that is the appropriate solution.

The test for litigation capacity was first set out in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889

In that particular case, the claimant had suffered a serious head injury after a motor vehicle accident , which he settled for the sum of £70,000. Years later, following an appointment with a neuropsychiatric rehabilitation consultant, the claimant became aware of a possibility that he ought to have been categorised as a ‘patient’ under section 94(2) of the Mental Health Act 1983 as previously enacted. He subsequently sued his former solicitors for negligence and/or breach of contract.

In this case, Chadwick LJ stated that the test was whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings.

This test was subsequently updated in Richardson-Ruhan v Ruhan [2021] EWFC 6, so that it be read to mean that if the party is capable of understanding with the assistance of proper explanation from legal advisers then the party would have the requisite capacity. This is in part to avoid a circular reading whereby a lack of representation would generate incapacity. .

Should a party appear to lack litigation capacity, there are ways in which the solicitor and court can help to ensure that the case is dealt with justly.

The Obligations of the Solicitor

When it comes to the issue of capability, the main issue is how best the parties’ engagement in the process can be facilitated and how a solicitor can make the process more accessible for a client who is facing certain challenges.

The family solicitor (or indeed a solicitor in any practice) will need to consider carefully their client care duties. Paragraph 3.4 of the SRA Code of Conduct states that client’s attributes; needs and circumstances should be taken into account. It is therefore important to identify what the client needs to understand and for the solicitor to support the client’s decision-making process, with records as to how this was achieved.

It is important that the solicitor considers the mode, timing and location of client meetings, with the aim of promoting the client’s engagement. This also accords with Principle 7, which requires that solicitors act in the best interests of their clients.

Moreover, the solicitor should consider whether the client can understand this particular case. As discussed by Munby LJ in Sheffield City Council v E & S [2004] EWHC 2808 (Fam), a person may have capacity to litigate a simple case whilst lacking the capacity to litigate or engage in complex and higher risk litigation. Solicitors should therefore be alive to this issue, particularly if complexity arises.

This is very much a general approach to what are frequently difficult and case specific circumstances. Solicitors should nonetheless maintain a pragmatic approach to the process, taking into account a client’s needs and best interests at all stages.

The procedural obligations - appointment of a litigation friend

Should the party be found to lack capacity, then pursuant to FPR r15.2, they are required to have a litigation friend to conduct the proceedings on their behalf. The appointment of a litigation friend can sometimes cause conflicts within families; there is sometimes dispute as to who is the most appropriate person to appoint.

A Court of Protection Deputy, appointed under the Mental Capacity Act 2005 can act as a litigation friend without a court order, as can any person if that person:

• Can fairly and competently conduct proceedings on behalf of the protected party;
• Has no adverse interest; and
• Undertakes to pay any costs which the protected party may be ordered to pay in relation to the proceedings.

The court can also appoint someone to be a litigation friend if they consent. This includes the Official Solicitor.

It is worth noting that a litigation friend is not the same as a McKenzie friend. A litigation friend is a person who acts for a protected party or child. A McKenzie friend meanwhile is a lay person who provides assistance to an unrepresented party. However, where an individual is facing barriers in engaging due to mental health or physical health issues and they do not have legal representation, a McKenzie friend may be a way to facilitate and promote their engagement in proceedings.

The role of the Court

There are also ways the court can help to facilitate parties’ engagement and ensure that the parties are on an equal footing.

In the recent case of ND v LD (financial remedy: needs) [2022] EWFC B15, the Husband had complex mental health issues, with the Final Hearing due to be heard shortly. In this instance, the Judge listed the case for a Ground Rules Hearing and appointed a specific person of contact for the parties.

The Ground Rules Hearing discussed issues around the appointment of a McKenzie friend for the Husband, the format of the Final Hearing and the filing of cross examination questions.

There was additionally a familiarisation visit which occurred to attempt to allay any anxiety around the Husband’s court appearance.

There were additional measures and directions implemented to ensure best evidence, including regular breaks, allowing the parties to give evidence remotely and giving the Husband an opportunity to have a health/support worker assisting him when reading the written Judgment. These bespoke procedural nuances ensured that the case was dealt with justly, in accordance with the overriding objective.

The changing landscape

Very often there will be many twists and turns within the life span of a family proceedings case and a

party’s inability to engage properly in the proceedings may not be clear from the outset. The issue may only become a live one during the proceedings and it is important that the solicitor remains alive to this and is able to consider appropriate solutions and the extent of their obligations to their client at any stage.

For example, if a solicitor is engaged in proceedings and believes that their client has lost capacity, they must make the court aware of this. This was what happened in the case of Richardson-Ruhan v Ruhan.

In that particular case, the Wife was suffering from mental illness and was being treated by a psychotherapist/psychiatrist. The court was alerted by the Wife’s Mackenzie Friend. Mostyn J made clear that if the Wife had lost the capacity to conduct the litigation, then under r.15.3, the proceedings were to be stopped until the question had been determined, with PD 15B paragraph 1.1 imploring Mostyn J to investigate the issue as soon as possible.

The court has a duty under paragraph 1.3 of PD 3AA to identify vulnerable parties and witnesses, with medical evidence likely to be necessary to clarify the position. This is in furtherance of the overriding objective which requires that cases are dealt with justly. As the vulnerability of parties may impede participation and diminish the quality of evidence, it is important that the court are aware so that they may take proportionate measures to address these issues.

Moreover, under section 1.4 of the Code of Conduct, solicitors have a duty not to mislead the court – even by omission. It is therefore important that the court are made aware as soon as possible to allow the court to manage the case expeditiously and proportionately.

Conclusion

The issues of capability and capacity in financial remedy proceedings are far from simple. As a result of the fluctuating and circumstantial nature of an individual’s position, solicitors should maintain a pragmatic approach to issues and remain live to their obligations, ensuring that they are satisfied that they are acting in the best interests of the client throughout their instruction.

Should the issue of capacity arise, the solicitor should look to first appraise themselves of the position before then drawing the court’s attention to the issue if so required, so that a litigation friend may be appointed.

The court will look to deal with matters expeditiously and fairly, with an emphasis on placing the parties on an equal footing. The bespoke solutions offered in ND v LD are indicative of the lengths to which the court are willing to go for litigants who lack capacity. This, coupled with the recent announcement of an increase in government investment in the legal support of vulnerable people to £4m, is demonstrative of an awareness of the issues in both the judiciary and executive branches of government which is both welcome and necessary.