Capacity and vulnerable parties

Capacity to litigate—family proceedings

For practitioners, issues of capacity may arise either in relation to their own client or regarding another party. Where a party has a solicitor, it is often that party’s solicitor who first identifies that the party may lack litigation capacity. If there is reason to believe that a party may lack capacity to conduct the proceedings at any time during the course of the proceedings, the court must be notified and directions sought to ensure that the issue is investigated without delay. However, the presumption of capacity should not be forgotten, for example, where a person has an identified difficulty such as a learning disability or a mental illness, that difficulty should not automatically lead to an investigation about that party's capacity to litigate.

The key provisions are contained in the Mental Capacity Act 2005 (MCA 2005) and Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 15 and the associated Practice Directions FPR 2010, PD 15A and FPR 2010, PD 15B. A person who lacks capacity is a protected party and must have a litigation friend to conduct proceedings