Understanding what happens in family court proceedings can be confusing and even overwhelming, particularly for those who may struggle to represent themselves effectively. In such situations, the concept of a litigation friend becomes not only relevant but essential. Often seen in more complex or sensitive cases, a litigation friend serves a crucial function, ensuring that access to justice is maintained for all, regardless of personal ability or mental capacity.
This article explores the role of a litigation friend within the context of family law as it operates in England & Wales. It’s vital to note the geographical specificity here, as legal systems and practices differ across jurisdictions in the United Kingdom. The family courts in England & Wales are governed by distinct procedural rules, chiefly the Family Procedure Rules 2010, and the role of a litigation friend within these proceedings reflects a nuanced approach to ensuring fairness and due process.
Who Needs a Litigation Friend?
First and foremost, a litigation friend may be appointed when a party to the proceedings lacks the capacity to conduct litigation on their own behalf. The legal definition of capacity in this context is closely tied to the Mental Capacity Act 2005, which sets out a framework to assess whether an individual is capable of making specific decisions at the time they need to be made.
Capacity is decision-specific. Just because someone lacks the capacity to make complex financial decisions, for example, does not necessarily mean they cannot instruct a solicitor or comprehend the nature of family proceedings. However, if it is established that an individual does not have the capacity to conduct litigation due to cognitive impairments, mental health difficulties, learning disabilities or other constraints, a litigation friend may be required.
In children’s cases, such as those under Children Act 1989 provisions, a child (defined as a person under 18) is typically deemed legally incapable of conducting litigation themselves and therefore must act through a litigation friend. Here, the role is particularly significant because decisions made in family court can shape a child’s life for years to come.
The Role and Responsibilities of a Litigation Friend
At its heart, the role carries a moral and legal weight. A litigation friend must act fairly and competently on behalf of the person they represent and have no interests that conflict with those of the person. They are expected to make decisions in the best interests of the individual, but importantly, they also must keep the person informed insofar as it is reasonably possible.
Unlike legal representatives, who are appointed to provide expert legal advice and representation, the litigation friend stands in the shoes of the party lacking capacity. They give instructions to solicitors, consider settlement offers, gather necessary evidence, attend hearings (often with legal support), and generally make decisions about the direction of the case. All these actions must be informed by the individual’s views where these can be adequately understood.
A litigation friend is not necessarily a legally trained individual. They can be a family member, a friend, or even the Official Solicitor – a public official empowered to act on behalf of those who cannot do so themselves. However, before anyone can act officially as a litigation friend, they must file a certificate of suitability with the court, certifying that they can act competently, fairly, and without conflict of interest.
Appointment of a Litigation Friend
The appointment process is procedurally formal. Rule 15 of the Family Procedure Rules 2010 outlines the mechanisms concerning how a person becomes a litigation friend in family proceedings. Any potential litigation friend must submit a certificate of suitability, unless appointed by the court itself or where the Official Solicitor consents to act.
The certificate must outline the prospective litigation friend’s relationship with the person in question, affirm that the individual lacks capacity as defined by the Mental Capacity Act 2005, and confirm that the litigation friend meets the legal criteria. Once the certificate is filed and accepted by the court, the litigation friend can act on behalf of the party throughout the proceedings, unless or until the litigant regains capacity and takes back control of the case.
Where there is no one suitable or willing to act as a litigation friend, the court may request the assistance of the Official Solicitor. However, the Official Solicitor will only take up the role if they are satisfied no one else can act and there is funding in place to enable the litigation to be conducted suitably, which often includes legal aid or private resources.
Children as Parties in Proceedings
Cases involving children frequently necessitate unique arrangements. In private law proceedings between parents, such as disputes over child arrangements, children are typically not parties unless the court directs otherwise. However, in public law proceedings brought by local authorities – for instance, care proceedings under section 31 of the Children Act 1989 – children are automatically made parties to the case and must have a children’s guardian appointed under the Children and Family Court Advisory and Support Service (CAFCASS).
The guardian, who is independent of the parties and tasked with representing the best interests of the child, will in turn instruct a solicitor. Together, the guardian and solicitor function in a role analogous to that of a litigation friend in adult cases. Nonetheless, older children, particularly those nearing adulthood, may wish to instruct a solicitor directly. If they demonstrate sufficient understanding, the court may permit this, limiting the guardian’s influence.
Critically, the child’s welfare remains the paramount consideration in all such cases. The role of the guardian and solicitor is to ensure this principle is upheld, including by giving the child a voice in proceedings where appropriate.
The Official Solicitor as Litigation Friend
The Official Solicitor acts as litigation friend of last resort. This public official is associated with the Ministry of Justice and is usually called upon in circumstances where no suitable alternative can be found. While the Official Solicitor operates across multiple areas of civil law, the involvement in family law cases tends to be limited to those involving adults who lack mental capacity and for whom no friend, relative, or social contact is willing or able to take up the role.
The Official Solicitor’s office imposes strict criteria before agreeing to act. These include the submission of medical evidence of incapacity, assurance that legal representation is or can be made available, and that the case has sufficient funding. If satisfied, the Official Solicitor adheres to the highest professional standards, intervening to protect the interests of someone profoundly vulnerable.
Withdrawal and Replacement
Circumstances can change. A person who temporarily lacks capacity may recover and be in a position to conduct proceedings independently. When this happens, the litigation friend must apply to cease acting, and the party regains their legal autonomy.
Conversely, if a litigation friend’s impartiality or competence is called into question, the court has the power to remove and replace them. Applications can also be made by other parties if there are concerns that the litigation friend’s continued role undermines the fairness of the proceedings.
Equally, litigation friends can themselves apply to step down, for example, due to personal illness or if it becomes clear that continuing would lead to a conflict of interest. When this occurs, another suitable litigation friend must be found, failing which the court may again request the involvement of the Official Solicitor.
Funding and Legal Aid
An issue often overlooked is how legal costs are managed when a litigation friend is involved. In many family cases where a party lacks capacity, legal aid may be available. The Legal Aid Agency may take the presence of a litigation friend into account when assessing eligibility, especially in complex or long-standing disputes.
A litigation friend is not personally financially liable for the costs of the case unless the court determines they acted improperly or negligently. However, they may need to manage payments, authorise funding agreements, and act as a conduit for financial arrangements, particularly where the represented person is unable to do so.
Challenges and Ethical Considerations
The role is not without ethical complexity. Decisions in family law often involve deeply personal questions – about relationships, custody, housing, and even medical care. Acting in someone’s best interests does not necessarily mean agreeing with what they appear to want. This can place a litigation friend in a morally difficult position, especially where the individual has strong views that are either irrational or potentially harmful.
Balancing respect for autonomy and the duty to protect is an inherent tension in such roles. For this reason, litigation friends are encouraged to consult with legal advisers, social workers, and where possible therapists or advocates, to develop a rounded understanding of what is truly in the individual’s best interests.
Systemic Implications
The use of litigation friends reflects a broader commitment within the legal system of England & Wales toward inclusion and fairness. The courts recognise that not everyone has an equal starting point when it comes to understanding and navigating legal processes. By facilitating participation through litigation friends, the justice system becomes more accessible, especially for the most vulnerable.
Yet concerns persist. Critics argue that vulnerable adults should have a more structured framework for advocacy, including greater investment in lay and professional support roles akin to litigation friends. Others suggest that the role needs statutory codification in family law, given its growing relevance in a society increasingly aware of mental health and neurodiversity.
Future Developments
Recent developments in family law, including increasing emphasis on participation rights, suggest the role of litigation friends may expand or become more clearly defined in the coming years. With ongoing reforms addressing access to justice and the challenges posed by litigants in person, particularly those who struggle due to mental incapacity or social disadvantage, there is a growing recognition that tailored support is essential.
Proposals for reform may include specific training for litigation friends, better pathways for lay persons to take on the role, and greater scrutiny of how ‘best interests’ are determined and acted upon. These changes could ensure not only more consistent standards but also more dignified engagement with the legal process by those who most need support.
Conclusion
The role fulfills an essential need within the family courts of England & Wales, safeguarding the participation of individuals who might otherwise be excluded from the justice process. Though often operating quietly, and sometimes without public understanding, litigation friends stand at the intersection of law, vulnerability, and fairness.
Whether acting for a child in care proceedings or an adult with mental health conditions embroiled in custody disputes, the litigation friend embodies the principle that everyone deserves their legal rights to be protected and their voice heard.
Thus, while the institution may evolve, its core value — ensuring justice for all — remains foundational to the functioning of the family courts. As awareness grows and legal systems adapt, the role of litigation friends is likely to become not only more visible but even more vital.