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Family proceedings and mental capacity

Hannah Beardmore

It is important to look after your mental health all the time, and this is no exception during any family law matter.

Due to the nature of the issues faced whilst engaging in family disputes, litigation can have a detrimental impact on your emotional wellbeing and indeed your mental health.

It is incredibly important that you can understand the advice given to you as a client, and it’s our duty as your legal advisors to recognise when you may be struggling with understanding proceedings and the advice offered to you.

There is a general presumption that a person has capacity to make their own decisions and understand the proceedings unless there is material evidence suggesting otherwise.

Capacity issues can arise for several different reasons. You may have mental ill health, or difficulties may be triggered by the breakdown of your marriage or not seeing your children.

You may lack the required mental capacity to litigate if there is a concern that you;

  • Have difficulty understanding information to help you make a decision
  • Struggle to retain key information
  • Have difficulty communicating your decision

It is not unusual for your solicitor to suggest that you speak with your GP to conduct a capacity assessment if they have any concerns.

If your GP decides that you do lack capacity to litigate, they will prepare a capacity certificate on your behalf confirming this.  This certificate will be referred to the court and you will be considered as a ‘protected party’ thereafter.

As a protected party, you will need to be appointed a ‘litigation friend’ before proceedings can continue. Your litigation friend may be a family member, a friend, or a professional. This person must be somebody that you trust and who will act in your best interests.

Being a litigation friend in family proceedings can be demanding so it is common for a client who lacks capacity to have trouble finding somebody willing to fulfil this role.

If you can not find somebody who is willing to act as your litigation friend, the court can request the involvement of the official solicitors, providing the court is satisfied that this is a last resort.

It is vital that the above steps are taken to ensure that your case runs smoothly, and so we can achieve the best possible outcome for you.

With the assistance of a litigation friend or the official solicitor, you will be able to focus on taking care of your mental health without the added stress of litigation.

Our main priority is to ensure that your needs are taken care of and that you are properly supported through the process.