Re D (Appointment of Litigation Friend)

A considerable time after the substantive decision was published, an important procedural judgment in the case of D has now been published ([2016] 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:

15. In the course of argument, I was referred to the decision of Charles J in Re UF [2013] EWHC 4289 (COP). The facts of that case are somewhat different from those of the present case. In particular, it should be noted that that case concerned a dispute between family members as to the right course to be taken in respect of P. It does, however, in my view, provide important guidance, albeit only from the court of first instance, and I note in particular the observation of Charles J at para.21 onwards of the judgment, where he says:

"… 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.

(2) …

(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.'"

16. As to the application of the principle on the facts of that case, Charles J continues, at para.23:

"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."

17. Although, as I have said, and is clear from the passage I have just recited, the decision in Re UF concerns a case where there was a dispute within the family, it seems to me that the approach and principles identified by Charles J are relevant to this case, and indeed all cases where the court is considering whether a family member can act as a litigation friend.

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:

19. […] to express views that he has expressed, positive views, about the prospect of the stem cell treatment. At the moment, I do not accept any suggestion that she has unduly influenced D to express such views. I acknowledge that she has supported the proposal that an independent expert be instructed to provide an opinion before the court makes its decision. On the other hand, it does seem to me that she is, to use the phrase adopted by Charles J in Re UF, "clearly wedded" to the view that this treatment is in D's best interests.
20. My impression is that, although she is not unshakeable in that view, it would take a lot to lead her to change her mind. Now, I do not blame her for holding that position. I can well understand a parent in that position taking that approach but, having regard to the overriding objective which underpins procedures in the Court of Protection, in particular the need to ensure that a case is dealt with expeditiously and fairly, and that P's interests are properly considered, and that the case is dealt with in a way that is proportionate to the nature, importance and complexity of the issues, it does seem to me that it may be difficult for her to act as a litigation friend with the degree of competence and fairness required in this case, which seems to me to raise unusual, indeed seemingly novel, issues for this court.

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.