Talking Family Law – the Resolution Podcast

Listen to Resolution’s podcast, with guest experts discussing topical issues in Family Law, with our hosts Simon Blain and Anita Mehta.

Join Resolution’s family law experts in our Podcast series

Each episode welcomes guest experts sharing their take on topical family law issues.  We cover the whole spectrum of family law, from abduction, surrogacy, and public law to financial remedy.

We invite our guests to take a deep-dive into a different topic each month.  On each episode we try and cover what is the current state of the law, or the leading authority, practical tips (if you are running one of these cases), and thoughts for reform.

Do expect some lively debates, and personal insights.  We try to find known experts in their field and ask them the things that we all want to know.  If you are an expert on a particular topic, either regionally or nationally, we would like to hear from you, so do please get in touch.

We were thrilled to be shortlisted for the Family Law Commentator of the Year award at the 2023 LexisNexis Awards.

Hosts Simon Blain and Anita Mehta with Resolution staff at the LexisNexis Awards 2023

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DISCLAIMER:  Nothing in any of the episodes is supposed to constitute legal advice.  We invite our guests to express personal views by way of legal commentary, this may differ from how they put their client’s case.

No liability is accepted for any error or omission about the law in respect of a particular topic.

S4 Episode 7: Capacity Issues in Family Litigation: The Lights Are Not Out!

 

About this episode

Hosted by: Anita Mehta and Simon Blain

Guests: Joseph O’Brien and Laura Flanagan

 

Further information

We are joined by Joseph O’Brien of St Johns Buildings and Laura Flanagan of Burgess Mee to discuss how to manage cases that involve capacity issues.

Laura has recently co-authored an article with Maisie Lockyer on this issue:

https://financialremediesjournal.com/content/family-proceedings-and-litigation-capacity.ec7c993244094031bbcb75338ef9c29e.htm

Unfortunately, court commitments meant Maisie was unable to join us for the recording.

Joe tells us that the Mental Capacity Act 2005 is the basis on which all capacity assessments should be undertaken. He reminds us that there is a presumption of capacity, but the presumption of capacity can be rebutted. The test is set out in s.2(1):

  1. People who lack capacity

(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Laura directs us to the Official Solicitor’s website, which includes guidance notes and the pro forma for the Certificate as to Capacity:

https://assets.publishing.service.gov.uk/media/63e3b03ad3bf7f172ccae151/capacity-to-conduct-proceedings-certificate.pdf

Joe reminds us that capacity involves a two-stage test: the first stage considers whether the person is unable to make the decision, and the second examines whether that inability is caused by an impairment of the mind or brain, as per A Local Authority v JB (Rev1) [2021] UKSC 52 

https://www.bailii.org/uk/cases/UKSC/2021/52.html

We also discuss what should happen when the protected parties have fluctuating capacity. Laura and Joe remind us that you need to make an application to terminate the appointment of the litigation friend if your client regains capacity, but you must apply for the litigation friend to be reappointed if they lose capacity again.

Finally, we discuss how the Court makes the decision about whether the protected person should give evidence. Joe reminds us of the practice direction on participation of vulnerable witnesses

https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/practice-direction-3aa-vulnerable-persons-participation-in-proceedings-and-giving-evidence#1

 

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