Coming into force on 31 January 2013 is FPR Practice Direction 15B – adults who may be protected parties and children who may become protected parties in family proceedings, which supplements FPR Part 15 (representation of protected parties).
The practice direction provides guidance regarding what the court will do where an adult may be a protected party and lack capacity to conduct proceedings, including the ability to give evidence as a witness. Instruction of experts for the purpose of assessment of capacity is considered and FPR r 25.5 referred to in terms of the list of factors to which the court must have particular regard when deciding to give permission.
Fluctuation in a party’s capacity to conduct litigation and the instruction of a litigation friend is reviewed. The directions regarding the use of a single joint expert (SJE) where possible are also reiterated. Although evidence from a SJE as to whether a party lacks capacity may not be appropriate, it may be acceptable where the expert evidence relates to an issue in the proceedings.
Finally, children aged 16-17 who are the subject of proceedings likely to lack relevant decision making capacity at age 18 are discussed in terms of their future ability to make decisions relevant to the proceedings when they are of age.
The full guidance can be downloaded below.