Re M (Republic of Ireland) (Child's Objections)(Joinder of Children as Parties to Appeal)
This case concerning the 1980 Child Abduction convention is of note for the discussion of the Court of Appeal as to the role of a litigation friend when acting for a child. The discussion was framed in the context of the FPR 2010, but is of potentially wider application, including to the Court of Protection.
At paragraph 153, Black LJ said (in a statement that may possibly have been intended to be drily tongue in cheek): "[t]he functions of a litigation friend are no doubt fully understood in the usual civil context in which the system operates although the researches of counsel did not produce any authorities to enlighten us further about how they actually carry out their functions or as to the principles that the court should apply when deciding whether to order that a litigation friend is not necessary."
Noting the absence of guidance as to how a litigation friend should proceed when acting on a behalf of a child in 1980 Convention cases, Black LJ laid down a statement of seemingly wider principle:
"155. Children need to know that their views are being listened to and that their particular concerns are not being lost in the argument between their parents but it must be recognised that direct participation in proceedings can be harmful for children. As Lord Wilson said in §48 of Re LC, "[t]he intrusion of the children into the forensic arena….can prove very damaging to family relationships even in the long term and definitely affects their interests". I therefore contemplate that it may be necessary for a litigation friend to guide and regulate the child's own participation in the proceedings, just as a guardian would. He or she will no doubt determine which documents filed in the proceedings should be shown to the child and take decisions, in consultation with the child, about whether the child should attend the court hearing. In the very unlikely event that an intractable issue arises between the litigation friend and the child, there may be no alternative but to ask the court to give directions, but I would expect such a situation to be extremely rare. What I do not think a litigation friend can do is provide a welfare assessment for the court in relation to the child as a guardian would do. However, where the litigation friend is the child's solicitor, as I anticipate will be so in the vast majority of cases, he or she will no doubt assess the case and guide and support the child in their approach to the litigation, as any solicitor would do for an adult client."
Comment
A guardian cannot be appointed to act for a child in proceedings in the Court of Protection (or, indeed, under the CPR, save, possibly in the circumstances considered in Re M, where a child had not been joined at first instance to proceedings under the FPR but was to be joined on appeal, where Black LJ contemplated that such might potentially be allowed by CPR r.52.10(1)). However, the distinction between a litigation friend and a guardian outlined by Black LJ is of some importance in outlining what a litigation friend cannot do when acting on behalf of a child under the CPR – and, it is suggested, the COPR.
Whether it can also be said that a litigation friend acting on behalf of either P or an adult protected party before the Court of Protection should be guided by the same principles set down by Black LJ at paragraph 155 is a rather different question. We suggest, though, that whatever else a litigation friend can and cannot do, it is clear that they cannot provide a welfare assessment for the court in relation to P as if they were the guardian appointed for a child joined to proceedings under the FPR.
We would suggest that a careful eye is kept by practitioners on the question of the role of litigation friends in light of:
- the appeal in the Re X litigation to be heard in the middle of February before the Court of Appeal; and
- the deliberations of the Court of Protection Rules Committee on these (and other topics) which should bear fruit in the very near future now that Royal Assent to the Criminal Justice and Courts Bill is imminent, resolving, inter alia, a technical problem with appeal routes from decisions before the Court of Protection.
