Since the case of R(C) v First-tier Tribunal [2016] EWHC 707 (Admin) the tribunal has been forced to accept that litigation friends can and should be appointed to help those who lack capacity to conduct their own tribunal proceedings. The procedure rules and practice directions are even now yet to be amended to catch up, but the tribunal has at least given some guidance on how to handle cases involving children. The case is R (on the application of JS & Ors) v Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 64 (IAC).

These particular cases were all applications for judicial review but the tribunal says that the same principles should apply in statutory appeals.

The purpose of a litigation friend is to conduct proceedings on behalf of the litigant in question. The duty of a litigation friend is to “fairly and competently to conduct proceedings on behalf of a child or patient” and “have no interest in the proceedings adverse to the child or patient and all steps and decisions he takes in the proceedings must be taken for the benefit of the child or patient”.

We went through the reasons why litigation friends are needed in some cases in this earlier blog post: Immigration tribunal can appoint litigation friend despite no provision in the rules. In short, the Law Society tells solicitors they cannot act for a person who lacks capacity. The test for whether a person lacks capacity to conduct litigation is “whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary”.

The official headnote and guidance:

(1) Although all cases are fact-specific, the following general guidance represents the approach the Upper Tribunal is likely to adopt in deciding whether a child applicant in immigration judicial review proceedings requires a litigation friend to conduct proceedings on the child’s behalf:

(a) As a general matter, applicants aged 16 or 17 years, without any attendant vulnerability or special educational need or other characteristic denoting difficulty, will be presumed to have capacity and so be able to conduct proceedings in their own right. They will generally not require a litigation friend. This is the position even if they are not legally represented.

(b) The appointment of litigation friends for applicants between the ages of 12 years and 15 years inclusive (i.e. 12 and over but younger than 16) needs to be considered on a case-by-case basis and the circumstances which should be considered, but which are not exhaustive, are:

(i) whether the applicant is legally represented;

(ii) whether there is an assisting parent;

(iii) whether there is a local authority involved; and

(iv) whether the applicant has any type of vulnerability.

(c) If an applicant in this age group is legally represented, the Tribunal will expect the representative specifically to address in writing the issue of whether, in the representative’s view, a litigation friend is necessary, having regard to capacity and the position of any parent.

(d) Applicants under the age of 12 will normally require a litigation friend.

(2) The above approach is one that, as a general matter, should also be followed in appeal proceedings, whether in the First-tier Tribunal or the Upper Tribunal.

(3) In deciding who is to be a litigation friend in a particular case, the guiding principles, derived from the Civil Procedure Rules, are:

(a) can he or she fairly and competently conduct proceedings on behalf of the child?

(b) does he or she have an interest adverse to that of the child?

(4) For practical purposes, only one person should normally be nominated as a litigation friend. A parent of a child will often be the obvious choice but not the only option.