Assessing Litigation Capacity in Family Court: A Practical Guide

Where a party to family proceedings lacks the capacity to conduct litigation, the court must appoint a litigation friend. This guide explains how litigation capacity is assessed, who conducts the assessment, and what happens when capacity is absent or fluctuating.

What Is Litigation Capacity?

Litigation capacity — sometimes called capacity to conduct proceedings — is the legal and clinical concept that determines whether a person can participate meaningfully in court proceedings. A party who lacks litigation capacity cannot give proper instructions to their solicitor, understand the nature of the proceedings, or make informed decisions about their case. In family proceedings, this most commonly arises where a parent has a learning disability, a severe mental health condition, an acquired brain injury, or a neurodevelopmental condition such as autism spectrum disorder.

The test for litigation capacity in family proceedings is not the same as the test under the Mental Capacity Act 2005, although the two are closely related. The MCA 2005 test applies to specific decisions — such as consenting to medical treatment or making a will — whereas litigation capacity is a broader assessment of whether a person can manage and direct the conduct of legal proceedings. The Court of Protection has jurisdiction over MCA capacity decisions, but the family court determines litigation capacity within its own proceedings.

The leading authority on litigation capacity in family proceedings is Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, which established that the test is whether the party is capable of understanding, with the assistance of proper explanation from their legal advisers, the issues on which their consent or decision is required and the consequences of giving or withholding that consent or decision. The Court of Appeal in Bailey v Warren [2006] EWCA Civ 51 confirmed that this is a functional, decision-specific test — not a global assessment of mental capacity.

When Does Litigation Capacity Arise in Family Proceedings?

Solicitors have a professional duty to raise the question of litigation capacity where there are reasonable grounds to doubt a client's ability to conduct proceedings. The duty arises under the Solicitors Regulation Authority's Code of Conduct and under the Family Procedure Rules 2010, Part 15, which governs the appointment of litigation friends.

Indicators that litigation capacity may be in issue include: a parent with a known learning disability or borderline intellectual functioning; a parent with a diagnosis of schizophrenia, bipolar disorder, or severe depression; a parent who has suffered a traumatic brain injury; a parent who appears unable to follow proceedings or give consistent instructions; or a parent whose behaviour in proceedings is markedly inconsistent with their apparent understanding of the issues.

The solicitor's duty is proactive

A solicitor who suspects their client lacks litigation capacity must not simply continue to act as if capacity is present. The duty to raise the issue with the court arises as soon as there are reasonable grounds for doubt — not only when capacity is clearly absent. Failure to act can result in a finding that the proceedings were conducted unfairly and that the parent's Article 6 rights were violated.

The Litigation Capacity Assessment

A litigation capacity assessment is conducted by a consultant clinical or forensic psychologist, or by a consultant psychiatrist with experience in capacity assessments. The assessment involves a clinical interview, a review of the relevant medical and social care records, and the administration of validated cognitive and neuropsychological tests where indicated.

The expert applies the functional test from Masterman-Lister to the specific demands of the proceedings. This requires the expert to understand the nature of the proceedings — care proceedings, contact disputes, adoption — and to assess whether the party can understand the issues, retain relevant information, weigh that information in the balance, and communicate their decisions to their legal advisers.

Cognitive Assessment

The expert administers standardised cognitive tests — such as the Wechsler Adult Intelligence Scale (WAIS-IV) or the Test of Premorbid Functioning (TOPF) — to establish the party's intellectual functioning, memory, and processing speed. Where a learning disability is identified, the expert assesses whether the party can understand the proceedings with appropriate support and communication adjustments.

Functional Capacity Assessment

The expert assesses the party's ability to perform the specific tasks required in litigation: understanding the nature of the proceedings, understanding the role of the various professionals, following the evidence, giving instructions to their solicitor, and understanding the consequences of different outcomes.

Mental State Examination

Where a mental health condition is relevant, the expert conducts a mental state examination to assess the nature and severity of the condition, its impact on the party's cognitive functioning, and whether treatment could restore or improve capacity within the proceedings' timetable.

What Happens When Capacity Is Absent or Fluctuating?

Where the expert concludes that a party lacks litigation capacity, the court must appoint a litigation friend under FPR Part 15. The Official Solicitor is frequently appointed as litigation friend for adults who lack capacity in family proceedings. The litigation friend acts in the party's best interests and gives instructions on their behalf.

Capacity can fluctuate — particularly where the underlying condition is a mental health disorder that responds to treatment, or where the party's functioning is affected by the stress of the proceedings themselves. In those cases, the expert may recommend that capacity be reassessed at a later stage, or that specific support measures — such as an intermediary, simplified documents, or additional time — be put in place to maximise the party's participation.

The court retains an inherent jurisdiction to make orders that facilitate the participation of vulnerable parties, even where the MCA 2005 does not strictly apply. Practice Direction 3AA of the Family Procedure Rules — which governs vulnerable parties and witnesses — requires the court to consider whether a party's vulnerability affects their ability to participate in proceedings and to take appropriate steps to address that vulnerability.