What is a Official Solicitor in Family proceedings? by Philip Duffy, Senior Associate

Who is the Official Solicitor and how do they become involved in family proceedings?

If a party to court proceedings has been determined by the court not to have litigation capacity, usually following an assessment from a psychiatrist or psychologist, then that person is unable to either represent themselves in proceedings or instruct a solicitor and becomes known as a ‘protected party’. Somebody without any conflict of interest has to come forward and provide instructions on that person’s behalf. In many cases there is nobody either willing or able to provide instructions on behalf of that protected party, and so the Official Solicitor can be invited by the court to be the ‘litigation friend’ and provide instructions on behalf of that protected party. The Official Solicitor will then instruct the Solicitor on behalf of the protected party

What test does the court apply to see someone has litigation capacity?

First of all , there is a presumption in favour of someone having litigation capacity, and for the court to determine otherwise would be on the balance of probabilities and also upon the basis that steps cannot be put in place to assist someone to get to the position of having litigation capacity.

The court will consider whether someone has an impairment of, or disturbance in the functioning of, the mind or brain and that as a result that person is incapable of conducting the court proceedings because he is unable to understand the relevant information, and/or is unable to retain that information, and/or is unable to use or weigh that information as part of the process of making the decisions in the conduct of the proceedings.

If the Official Solicitor is providing instructions does that mean that the protected party’s views will not be considered?
It is possible for the protected party to disagree with any capacity assessment by a psychologist or psychiatrist and make representations to the court that they do have litigation capacity, or that steps could be taken to assist in them having litigation capacity. The court will then make a decision and decide what steps should be taken so that the person can properly participate.

Furthermore, the issue of litigation capacity is to be kept under review because it is possible for someone not to have litigation capacity but then to regain it at a later stage.

In any event, the Official Solicitor would always communicate the protected party’s ascertainable wishes and feelings to the court, even if the instructions provided by the Official Solicitor are not the same as those ascertainable wishes and feelings.

The Official Solicitor will consider what the protected party has to say when deciding whether or not it is possible to put any realistic arguments and relevant evidence to the court in support of the protected party, which may be in accordance with the protected party’s ascertainable wishes and feelings or may not but the protected person’s wishes and feelings will still be communicated to the court.

Philip has conducted numerous cases with the official solicitor involved. If you think we can assist you or a family member please feel free to get in touch.