Part 21 CHILDREN AND PROTECTED PARTIES
See also Practice Direction 21
Scope of this Part
21.1
(1) This Part –
(a) contains special provisions which apply in proceedings involving children and protected parties;
(b) sets out how a person becomes a litigation friend; and
(2) In this Part –
(a)‘the 2005 Act’ means the Mental Capacity Act 2005;
(b)‘child’ means a person under 18;
(c)‘lacks capacity’ means lacks capacity within the meaning of the 2005 Act;
(d)‘protected party’ means a party, or an intended party, who lacks capacity to conduct the proceedings;
(e)‘protected beneficiary’ means a protected party who lacks capacity to manage and control any money recovered by them or on their behalf or for their benefit in the proceedings ;
(f) “specified debts” has the same meaning as in rule 75.1(2)(e); and
(g) “taking control of goods” means using the procedure to take control of goods contained in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007(a).
(Rules 6.13 and 6.25 contain provisions about the service of documents on children and protected parties.)
(Rule 46.4 deals with costs where money is payable by or to a child or protected party.)
Requirement for a litigation friend in proceedings by or against children and protected parties
21.2
(1) A protected party must have a litigation friend to conduct proceedings on their behalf.
(2) Unless the court makes an order under paragraph (3), a litigation friend mustconduct proceedings on a child’s behalf
(3) The court may make an order permitting a child to conduct proceedings without a litigation friend.
(4) An application for an order under paragraph (3) –
(a) may be made by the child;
(b) if the child already has a litigation friend, must be made on notice to the litigation friend; and
(c) if the child has no litigation friend, may be made without notice.
(5) Where –
(a) the court has made an order under paragraph (3); and
(b) it later appears to the court desirable for a litigation friend to conduct theproceedings on the child’s behalf,
the court may appoint a person to be the child's litigation friend.
(6)Where one of the parties is a child or protected party, that party shall be referredto in the title to the proceedings as “[name] (a [child] [protected party]) by [name] aslitigation friend
(7)Where one of the parties is a child conducting the proceedings on their own behalf,the child shall be referred to in the title as “[name] (a child)”.
Stage of proceedings at which a litigation friend becomes necessary
21.3
(1) This rule does not apply where the court has made an order under rule 21.2(3).
(2) A person may not, without the the court’s permission –
(a) make an application against a child or protected party before proceedings have started; or
(b) take any step in proceedings except –
(i) issuing and serving a claim form; or
(ii) applying for the appointment of a litigation friend under rule 21.6,
until the child or protected party has a litigation friend.
(3) If during proceedings a party lacks capacity to continue to conduct proceedings, no party may take any further step in the proceedings without the permission of the court until the protected party has a litigation friend.
(4) Any step taken before a child or protected party has a litigation friend has no effect unless the court orders otherwise.
Who may be a litigation friend without a court order
21.4
(1) This rule does not apply if the court has appointed a person to be a litigation friend.
(2) A deputy appointed by the Court of Protection under the 2005 Act with power to conduct proceedings on the protected party’s behalf is entitled to be the protected party’s litigation friend in any proceedings to which the deputy’s power extends.
(3) If nobody has been appointed by the court or, in the case of a protected party, appointed as a deputy as set out in paragraph (2), a person may act as a litigation friend if they –
(a) can fairly and competently conduct proceedings on behalf of the child or protected party;
(b) have no interest adverse to that of the child or protected party; and
(c) where the child or protected party is a claimant, undertake to pay anycosts that the claimant is ordered to pay, subject to any right to be repaidfrom the assets of the child or protected party
How a person becomes a litigation friend without a court order
21.5
(1) If the court has not appointed a litigation friend, a person who wishes to act as a litigation friend must follow the procedure set out in this rule.
(2) A deputy appointed by the Court of Protection under the 2005 Act with power to conduct proceedings on the protected party’s behalf must file an official copy(GL) of the order of the Court of Protection which confers their power to act either –
(a) where the protected party is to be a claimant, when the claim is made; or
(b) where the protected party is to be a defendant, at the time when the deputy first takes a step in the proceedings on the defendant’s behalf.
(3) Any other person must file a certificate of suitability stating that they satisfy the conditions specified in rule 21.4(3) either –
(a) where the person is to act as a litigation friend for a claimant, at the time when the claim is made; or
(b) where the person is to act as a litigation friend for a defendant, at the time when they first take a step in the proceedings on the defendant’s behalf.
(4) The certificate of suitability must be verified by a statement of truth and must statein accordance with the prescribed form that the person—
(a)agrees to act;
(b)knows or believes the person concerned is a child or lacks capacity to conductthe proceedings (stating in the latter case the grounds for that knowledge orbelief); and
(c)meets the requirements of rule 21.4(3).
(5)The litigation friend must –
(a)serve the certificate of suitability on every person on whom, in accordance with rule 6.13 (service on a parent, guardian etc.), the claim form should be served; and
(b)file a certificate of service when filing the certificateof suitability.
(Rules 6.17 and 6.29 set out the details to be contained ina certificate of service.)
(6) Where the grounds for believing that a protected party lacks capacity to conductthe litigation are based on expert opinion, a copy of such opinion must be served, eitherwith the certificate of suitability or separately
How a person becomes a litigation friend by court order
21.6
(1) The court may make an order appointing a litigation friend.
(2) An application for an order appointing a litigation friend may be made under Part 23 by –
(a) a person who wishes to be the litigation friend; or
(b) a party.
(3) Where –
(a) a person makes a claim against a child or protected party;
(b) the child or protected party has no litigation friend;
(c) the court has not made an order under rule 21.2(3) (order that a child can conduct proceedings without a litigation friend); and
(d) either –
(i) someone who is not entitled to be a litigation friend files a defence; or
(ii) the claimant wishes to take some step in the proceedings,
the claimant must apply to the court for an order appointing a litigation friend for the child or protected party.
(4) An application for an order appointing a litigation friend must be supported by evidence of all the matters set out in rule 21.4(3).
(5) The court may not appoint a litigation friend under this rule unless it is satisfied of those matters that the person to be appointed satisfies the conditions in rule 21.4(3).
(6) Where the proposed litigation friend is the Official Solicitor, the court’s order mustmake provision for payment of any charges, expenses or disbursements.
Court’s power to change a litigation friend and to prevent person acting as a litigation friend
21.7
(1) The court may –
(a) direct that a person may not act as a litigation friend;
(b) terminate a litigation friend's appointment; or
(c) appoint a new litigation friend in substitution for instead of an existing one.
(2) An application for an order under paragraph (1) must be supported by evidence.
(3) The court may not appoint a litigation friend under this rule unless it is satisfied that the person to be appointed satisfies the conditions in rule 21.4(3).
Appointment of a litigation friend by court order – supplementary
21.8
(1) An application for an order under rule 21.6 or 21.7 must be served on every person on whom, in accordance with rule 6.13 (service on parent, guardian etc.), the claim form must be served.
(2) In the case of a protected party, an application under rule 21.6 must also be servedon the protected party, unless the court directs otherwise
(3) An application for an order under rule 21.7 must also be served on –
(a) the person who is the litigation friend, or appearing to act as such, when the application is made; and
(b) the proposed litigation friend, if they are not the applicant.
(4) On an application for an order under rule 21.6 or 21.7, the court may appoint the person proposed or any other person who satisfies the conditions in rule 21.4(3).
Procedure where appointment of a litigation friend ceases
21.9
(1) When a child who is not a protected party reaches the age of 18, the litigation friend’s appointment ceases.
(2) Where a protected party regains or acquires capacity to conduct the proceedings, the litigation friend’s appointment continues until it is ended by court order.
(3) An application for an order under paragraph (2) may be made by –
(a) the protected party;
(b) the litigation friend; or
(c) a party.
(4) The party whose litigation friend’sappointment has ceased must serve notice on the other parties –
(a) stating that the appointment of his litigation friend to act has ceased;
(b) giving the party’s address for service; and
(c) stating whether or not they intend to carry on the proceedings.
(5) Where that party was a child, the notice must state that they have reached the ageof 18 and be signed by that party personally.
(6) If that party does not serve the notice required by paragraph (4) within 28 days after the day on which the appointment ceases the court may, on application, stay or strike out any claim brought by or defence raised by the child or protected party.
(7) The liability of a litigation friend for costs continues until the party concerned serves the notice requiredunder paragraph (4) or the former litigation friend serves notice on the parties that theirappointment has ceased.
(a) the person in respect of whom his appointment to act has ceased serves the notice referred to in paragraph (4); or
(b) the litigation friend serves notice on the parties that his appointment to act has ceased.
Compromise etc. by or on behalf of a child or protected party
21.10
(1) Where a claim is made –
(a) by or on behalf of a child or protected party; or
(b) against a child or protected party,
no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.
(2) Where –
(a) before proceedings in which a claim is made by or on behalf of, or against, a child or protected party (whether alone or with any other person) are begun, an agreement is reached for a settlement or compromise or a payment (including any voluntary interim payment) which relates to the claim; and
(b) the sole purpose of proceedings is to obtain the approval of the court to a settlement or compromise or a payment (including any voluntary interim payment) which relates to the claim,
the claim must –
(3)The documents supporting any application or request for approval must include—
(a)a draft consent order setting out the proposed settlement terms;
(b)details of whether or to what extent liability is admitted;
(c)the age and occupation (if any) of the child or protected party;
(d)confirmation that the litigation friend approves the settlement;
(e)a copy of any relevant medical, financial or other expert evidence or advice;
(f)in a personal injury claim arising from an accident, details of the accident and ofclaimed loss and damage;
(g)any documents relevant to considerations of liability; and
(h)a legal opinion on the merits of the settlement, except in very clear cases, togetherwith any relevant instructions unless they are sufficiently set out in the opinion.
(4)If the claim includes damages for future financial loss, the court must be satisfiedthat the parties have considered whether the damages should wholly or partly compriseperiodical payments.
(5)If the settlement includes periodical payments, the draft consent order must satisfythe requirements of rules 41.8 and 41.9 as appropriate.
(6)In proceedings to which Section IV of Part 45 applies, the court will notmake an order for detailed assessment of the costs payable to the child or protected partybut will assess the costs in the manner set out in that Section.
(7)Where settlement of a claim by or on behalf of a dependent child includes agreementon a sum to be apportioned to the dependent child, the parties must provide to the court inaddition details of—
(a)the claimed loss of future earnings in respect of the deceased;
(b)the nature and extent of the dependency.
Control of money recovered by or on behalf of a child or protected party
21.11
(1) Where in any proceedings –
(a) money is recovered by or on behalf of or for the benefit of a child or protected party; or
(b) money paid into court is accepted by or on behalf of a child or protected party,
the money will be dealt with in accordance with directions given by the court under this rule and not otherwise.
(2) Directions given under this rule may provide that the money shall be wholly or partly paid into court and invested or otherwise dealt with.
(3) Where money is recovered by or on behalf of a protected party or money paid into court is accepted by or on behalf of a protected party, before giving directions under this rule, the court will first consider whether the protected party is a protected beneficiary.
(4) Where a child lacks capacity to manage and control any money recovered by oron behalf of the child, and is likely to remain so on reaching full age, the fund will beadministered as a protected beneficiary’s fund.
(5) Where a child or protected beneficiary is in receipt of publicly funded legal servicesthe fund shall be subject to a first charge under section 25 of the Legal Aid, Sentencing andPunishment of Offenders Act 2012(9) (statutory charge) and an order for the investmentof money on the child’s or protected beneficiary’s behalf must contain a direction to thateffect.
(6) The representative or litigation friend of the child or protected beneficiary mustapply to the court for directions for management of the fund or payment into court (usingForm CFO 320 or CFO 320PB to be completed by the judge), stating the nature and termsof any proposed investment vehicle, with appropriate supporting evidence.
(7) The judge hearing the application may adjourn it and give directions for furtherinformation to be provided and, unless the judge directs otherwise, the money recoveredwill be paid into the court special account pending determination of the application forinvestment.
(8) Where money is recovered for the benefit of a child who is not a protectedbeneficiary—
(a)if the court considers it appropriate, it may order that the money be paid directlyto the litigation friend to be placed in a bank, building society or similar accountfor the child’s use;
(b)if the money remains invested in court, it must be paid out to the child when thechild reaches the age of 18;
(c)any investments held in court other than money must either be sold and theproceeds paid to the child, or transferred to the child, when the child reachesthe age of 18.
(9) Where money is recovered for the benefit of a protected beneficiary—
(a)if the amount is £100,000 or more, subject to (b) below, the court shall directthe litigation friend to apply to the Court of Protection for the appointment ofa deputy, after which the fund shall be dealt with as directed by the Court ofProtection;
(b)the procedure in sub-paragraph (a) will not apply where a person with authorityto administer the protected beneficiary’s financial affairs has been appointedas attorney under a registered enduring power of attorney, or as donee of aregistered lasting power of attorney, or as the deputy appointed by the Court ofProtection;
(c)any payment out of money must be in accordance with any decision or order ofthe Court of Protection;
(d)if an application to the Court of Protection is required, that application must bemade;
(e)if the Court of Protection so decides, on its own initiative or at the request ofthe judge hearing the application for investment, an amount exceeding £100,000may be retained in court and invested in the same way as the fund of a child.
(10) A request for payment of money from a fund held for the benefit of a child orprotected party, or to vary an investment strategy, may be made in writing with appropriatesupporting evidence (but without making a formal application) to a Master or DistrictJudge and may be determined without a hearing unless the court directs otherwise.
Costs and expenses incurred by a litigation friend
21.12
(1) In proceedings to which rule 21.11 applies, a litigation friend who incurs costs or expenses on behalf of a child or protected party in any proceedings is entitled on application to recover the amount paid or payable out of any money recovered or paid into court to the extent that it –
(a) has been reasonably incurred; and
(b) is reasonable in amount.
(2)
Costs recoverable in respect of a child under this rule are
limited to—
(a)costs which have been assessed by way of detailed
assessment under rule 46.4(2);
(b)costs incurred by way of success fee under a
conditional fee agreement or sum payable under a
damages based agreement in a claim for damages for
personal injury where the damages agreed or ordered to
be paid do not exceed £25,000, where such costs have
been summarily assessed under to rule 46.4(5);
or
(c)costs incurred where a detailed assessment of costs
has been dispensed with under rule 46.4(3) in the
circumstances set out in Practice Direction 46.
(3) Expenses may include all or part of –
(a)a premium in respect of
a costs insurance policy (as defined by
section 58C(5) of the Courts and Legal Services Act 1990)
(b) interest on a loan taken out to pay a premium in respect of a costs insurance policy or other recoverable disbursement.
(4) No application may be made under this rule for costs or expenses that –
(a) are of a type that may be recoverable on an assessment of costs payable by or out of money belonging to a child or protected party; but
(b) are disallowed in whole or in part on such an assessment.
Costs and expenses which are also “costs” as defined in rule 44.1(1) are subject to rule 46.4(2) and (3).)
(5) In deciding whether the costs or expenses were reasonably incurred and reasonable in amount, the court will have regard to all the circumstances of the case including the factors set out in rule 44.4(3) and rule 46.9.
(6) When the court is considering the factors to be taken into account in assessing the reasonableness of the costs or expenses, it will have regard to the facts and circumstances as they reasonably appeared to the litigation friend or to the child’s or protected party’s deputy when the cost or expense was incurred.
(7) Subject to paragraph (8), where the claim is settled or compromised, or judgment is given, on terms that an amount not exceeding £5,000 is paid to the child or protected party, the total amount the litigation friend may recover under paragraph (1) must not exceed 25% of the sum so agreed or awarded, unless the court directs otherwise. Such total amount must not exceed 50% of the sum so agreed or awarded.
(8) The amount which the litigation friend may rec over under paragraph (1) in respect of costs must not (in proceedings at first instance) e xceed 25% of the amount of the sum agreed or awarded in respect of—
(a) general damages for pain, suffering and loss of amenity; and
(b) damages for past financial loss other than future pecuniary loss,
net of any sums recoverable by the Compensation Rec overy Unit of the Department for Work and Pensions.
(9) Except in a case to which Section IV , Section VI, Section VII or Section VIII of Part 45 applies, and where under rule 45.9 or 45.10 has not been made, no application may be made under this rule for a payment out of the money recovered by the child or protected party until the costs payable to the child or protected party have been assessed or agreed
(10)A litigation friend must support a claim for payment from a fund of costs orexpenses by filing a witness statement setting out, so far as applicable—
(a)the nature and amount of the costs or expenses and the reason they were incurred;
(b)a copy of any conditional fee or damages based agreement;
(c)a copy of any risk assessment by reference to which any success fee wasdetermined;
(d)the reasons why the particular funding model was selected;
(e)the advice given to the litigation friend on funding arrangements;
(f)a copy bill or informal breakdown of the solicitor and own client base costsincurred;
(g)details of any costs agreed, recovered or fixed costs recoverable by the child; and
(h)an explanation of the amount agreed or awarded for—
(i)general damages for pain, suffering and loss of amenity; and
(ii)damages for past financial loss, net of any sums recoverable by theCompensation Recovery Unit or the Department for Work and Pensions.
Appointment of a guardian of a child’s estate
21.13
(1) The court may appoint the Official Solicitor to be a guardian of a child’s estate where –
(a) money is paid into court on behalf of the child in accordance with directions given under rule 21.11 (control of money received by a child or protected party);
(b) the Criminal Injuries Compensation Authority notifies the court that it has made or intends to make an award to the child;
(c) a court or tribunal outside England and Wales notifies the court that it has ordered or intends to order that money be paid to the child;
(d) the child is absolutely entitled to the proceeds of a pension fund; or
(e) in any other case, such an appointment seems desirable to the court.
(2) The court may not appoint the Official Solicitor under this rule unless –
(a) the persons with parental responsibility (within the meaning of section 3 of the Children Act 19891) agree; or
(b) the court considers that their agreement can be dispensed with.
(3) The Official Solicitor’s appointment may continue only until the child reaches 18.
(Paragraph 8 of Practice Direction 40A deals with approval of the accounts of a guardian of assetsof a child.)
