Judge: Baker J
Citation:  EWCOP 67
A considerable time after the substantive decision was published, an important procedural judgment in the case of D has now been published ( EWCOP 67), in which the mother of a soldier with a serious brain injury was found not to be an appropriate litigation friend in proceedings to determine whether it was in his best interests to travel to Serbia to undertake stem cell therapy.
D’s mother, who had brought the application on his behalf, had firm views as to the merits of the proposed treatment, but “rightly refer[red]” Baker J “to authority [presumably Re AVS] that the fact that a proposed litigation friend has a view as to the outcome does not disqualify that person from acting as litigation friend.” The Ministry of Defence contended that D’s mother could not, because of her firm views, fairly and competently conduct proceedings on his behalf.
Baker J noted that:
“… it seems to me that Rule 140 must be read and applied in the context of the overriding objective and having regard to the circumstances of each case. The overriding objective is set out in Rule 3 as follows:
‘(1) These Rules have the overriding objective of enabling the court to deal with cases justly and having regard to the principles contained in the Act.
(3) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) ensuring that P’s interests and position are properly considered;
(c) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(d) ensuring that the parties are on an equal footing;
(e) saving expense; and
(f) allotting to it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases.'”
“I agree that members of a family, even if there is a family dispute concerning P’s best interests could, albeit I think rarely, appropriately act as P’s litigation friend in proceedings relating to that dispute. However, it seems to me that he or she would need to demonstrate that he or she can, as P’s litigation friend, take a balanced and even-handed approach to the relevant issues. That is a difficult task for a member of the family who is emotionally involved in the issues that are disputed within the family and it seems to me an impossible task for AF to carry out in this case. One only has to look at her statements to see that she is clearly wedded to a particular answer. You do not see within her statements a balanced approach or anything approaching it, such as: ‘This is the problem. These are the relevant factors for and against’. That is not a criticism. Rather it seems to me that it is a product of the result of there being long-standing family disputes and the existing clear divisions of opinion within the sibling group as to what will best promote UF’s best interests.”
Baker J had no reason to doubt that D’s mother was motivated solely by what she believes to be in the best interests of her son: “I accept that she only wants what is best for him and that she would not take any action which she thought would cause him harm or expose him to unnecessary risk.” Baker J rejected the suggestion that she may have influenced her son:
Baker J therefore invited the Official Solicitor to act as litigation friend in the proceedings. Presciently, he noted that nothing in his procedural judgment should be read as implying that he had formed any view of the ultimate outcome, and that “[t]he court’s obligation is to make a best interests decision on the basis of all the evidence, including D’s own wishes and feelings and the views of members of his family.” As we know, Baker J ultimately, and in the face of submissions to the contrary from not just the Ministry of Defence but also the Official Solicitor on D’s behalf, found that, in principle, it was in his best interests to go to Serbia to undertake the treatment, D’s wishes and feelings being central to his determination.