Accidents happen and if accidents happen then sometimes children will be involved. A person is classified as a child in the UK if they are below the age of 18. Once they attain that milestone then they are assumed to have full legal capacity. Before the age of 18 a child has no legal capacity. In terms of accident claims this means that the child (or minor as they are sometimes called) cannot themselves progress or defend a claim. So if the child cannot deal with the case, who does?
The law in England and Wales is that if a person (such as a child) lacks legal capacity then another person who does have capacity can act on their behalf. This person is called a “Litigation Friend.” (LF).
Most parents are very responsible and will want to see their child receive the level of compensation their case deserves. In practical terms they will probably want to act for their child in the bringing of a claim and will consent to act as the LF. If no-one consents to being the LF, then the Court can appoint the LF or, in exceptionally rare cases might agree the child can act on their own.
The requirements for being a LF are threefold. That person must:-
- Fairly and competently conduct proceedings on behalf of the child or protected party. In other words, you must put aside any personal interests for the benefit of the child; and
- Have no interest adverse to that of the child or protected party. This would preclude the person at fault for an accident acting where eg the child was a passenger in your car and you caused the accident; and
- Where the child or protected party is a claimant, undertake to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party. An undertaking is a binding legal promise. Since the LF will be conducting the litigation this provision makes them responsible for any costs consequences.
Once appointed as LF, the child’s case progresses as normal save that any decisions about the case fall upon the LF to decide based upon the legal advice they are given.
If the case is a claim for compensation for the child, then in most instances the Court will be asked to approve the award. What this means is that there will be a short Court hearing where a judge sitting in his private rooms will decide whether the amount of compensation on offer is reasonable. If they agree it is, they will then say what can be done with the money ie whether it is to be invested for the child or paid directly to the LF. The LF in most cases will be expected to be at Court along with the child for this hearing. The judge will certainly want to know that the child is fully recovered (or if not that the medical evidence is sound). The reason for such a hearing is to make sure the child gets the right money and they are not being sold short either by their lawyers or the LF.
Many parents when they are acting as LF mistakenly believe they can conduct the litigation in their own way, such as not take the child to a recommended medical examination, or to settle the claim before medical evidence is complete. Whilst an opponent will almost certainly want to settle the case as early as possible and for as little money as possible, doing so almost certainly conflicts with the 1st, and/or 2nd requirements to be a LF. If a case for approval were presented to the Court with incomplete evidence the judge would certainly refuse the award and would almost certainly order the LF to pay for wasting Court time. Further, many parents think that when the case settles the damages are theirs to do with as they please. Sorry to disappoint, but it is not your money!
In high value claims involving a child, trust funds are set up which will provide an income for the child which can cover their treatment, accommodation and schooling costs. Most cases though are of lower value and the Court therefore directs the money be invested in an index linked fund so the child gets the equivalent money once they reach the age of 18. Judges will also permit the compensation to be paid into a child trust fund where one is in place. Sometimes the LF will ask for money for a specific purpose such as to buy a computer or for a holiday. Payment of the money directly is a matter for the discretion of the judge, but generally speaking where the purpose is to benefit the child permission will be given.
After the damages are invested, if this is into Court funds then a six monthly investment statement is sent out showing the current value of the investment. Once the child reaches the age of 18 they can apply to receive the monies from the Court Funds Office. At this stage the money should have an equivalent or better value than when the funds were first invested.