What is a ‘certificate as to capacity to conduct proceedings’? 

A ‘certificate as to capacity to conduct proceedings’ can also be called a ‘capacity to litigate’. At Altass-Cheshire we are commissioned this type of assessment more often than not by social services – a social worker or the social service department solicitor, or by the solicitor acting for the client. 
A capacity assessment of this nature will be requested because there is concern that the client (called the ‘party’ or the ‘intended party’) within the proceedings lacks capacity to understand/follow the proceedings (within the meaning of the mental capacity act 2005) and is therefore called a ’protected party’. 
It is important here to state that the assessment is only for the purpose of proceedings, meaning it is only to be used for the specific case the assessment has been requested for. So if a child is under the care of social services or there are concerns about a child and there are concerns about the carer/mother/father and their ability to understand the court process then a certificate as to capacity to conduct proceedings assessment needs to be carried out by an independent practitioner. The Mental Capacity Act principle of the assessment being about a specific area is vital here, this assessment can only be used for the case being brought by the Local Authority. 
If the client we are completing the assessment with is assessed as not having capacity to understand or follow the court proceedings then someone called a litigation friend should be appointed. 

What is a litigation friend and when is one needed? 

Okay here’s the wordy legal bit: part 15 of the family procedure rules 2010 and part 21 of the civil procedure rules 1998 state that a person who lacks capacity must have a litigation friend to conduct the proceedings on that party’s behalf. The litigation friend, rather than the protected party, is responsible for making the decisions about the conduct of the proceedings. Who can be a litigation friend. The court can appoint anyone to be a litigation friend, for example: a parent or guardian. a family member or friend. 
There is an office of ‘Official Solicitors’ who will be asked to become involved if an appropriate litigation friend is not available. So an Official Solicitor will only be approached, as a last resort, in cases where there is no other suitable person who is willing to act as a litigation friend. 
Share this post:

Leave a comment: 

Our site uses cookies. For more information, see our cookie policy. Accept cookies and close
Reject cookies Manage settings