Hello. Welcome, everybody. My name's after Mahmoud. Most lister on day lecturer. Very pleased to welcome you to today session, where I'm going to be looking at a capacity issues in Children cases and tick you looking at what to do in these types of cases? So this bites I session on the course of 20 minutes will be hopefully addressing some of these issues that might have in this field. So we're looking at particularly what practitioners need to do when you are involved in Casey's Children cases where they are concerns over capacity over one more apart is principally when looking at the matched issues off, one more off the pens or other cares and I'll be looking at somebody needed occasional in this field as well. A somebody safe particular aspect surrounding practice guidance and also some information from the funding procedures. Less than start with first and foremost to defund procedures, and I'm looking at a position with capacity as it relates to under the family procedures and part 15 in particular. Now, Part 15 uncovers Aaron surrounding representation of protective parties and therefore, where there is the need for the engagement of a litigation friend it's often may well be the official solicitor and therefore will be giving instructions on behalf of the person who likes capacity on when you look at Part 15 of the FP. Art is also the accompanying practice direction. Back Destruction 15 8 which accompanies this onder. This will set out a lot of the information. So far, Sir, procedure is concerned on what you find in these types of situations is there will be a need to first and foremost consider whether or not the person does lack litigation capacity, which will look at shortly. If they do, then Part 15 would require them to have the benefit off. Having a litigation friend who were then given instructions on maybe half, not adjudication. Friend should be somebody who has no interest in the proceedings at first to that off the protected party. And if litigation friend cannot be identified, for example, if it's another family member, maybe somebody who knows the person well enough to be able to get for users to what they would have thought they would have sought what was in their best interests then that's where, as we'll see shortly, the official solicitor might get involved in the officials list his teammate and give instructions on behalf of the person who lacks capacity. Now it is possible to become a litigation friend without a court order to do that. One was far on official copy of the order. Declaration of the document confirms they authority to actors as effectively Deputy conducted proceedings in that regard. But more times than not, you find that certainly Children scenes there will be on application. Made. 40 invitation off the litigation friend, which made in a proper cases beauty official solicitor Sorts. Invited to that actors do litigation friend for the person who left capacity and look like a passive. Generally, this is where we look at Amanda Capacity of 2005. This act came to affect principally in October 2000 and seven. I should also note that there are amendments to this act, which were becoming about principally next year. Amounted passed the Amendment Act of 2000 and 19 bringing about fable of changes, farms the position with issues over capacity and also related to shoes off, for example, deprivation and also matters willing to to probably some to the act anyway. Section two subsection one of the emcee dis upset side to the test capacity and essentially provides that a person does lack capacity in relation to a matter of fact. In material time. They're on overtime decision for themselves in relation to that much of exiting with payment or disturbance of the function of the mind the brain. Now, when you look at capacity, it's effectively what's going person, time on event specific and therefore Children seems for his own. For some of the cases I've had, it may be the case that say you're after For mother. It may be that she lacks litigation. Capacity to give instructions to her lawyer as to the Cape seems resigned, popular when she's soon again by, say, a psychologist, a psychiatrist. They confirmed that infection does have litigation capacity, but only in relation to specific matters such as, for example, in the situation of by the shoes have to consent or otherwise to adoption of a child. So no, she may not have mitigation capacity to death. Given structures in relation to conduct a care facilities may find that they remind us to go to capacities person time on one specific she's able to give instructions in relation to the one issue chooses to one issue whether much can in fact consent to her job, be made subject to a place in problem for perhaps two consented placement of the child for adoption. And that's where I've found that this understanding off person, time on defense, specific famous that comes into play. Nobody looked at Section one off the 2005 active it sets at the various five statue principles. When you're looking at capacity is at the core values that really, which underpin the requirements on plastic to 2000 and five on those principles, essentially out of the person is assumed to have crossing. This is established that, like this, is an adult competent a person. They are assumed to have capacity a little over the presumption of having capacity. Unless it's proven otherwise, the person is not to be true to their being unable to make a decision on Lessel. Practical steps have been given to them to enable them to make that decision. So we need to ensure that when you do see clients, you see them in a situation where they feel comfortable in an environment with a few but to speak and communicate, and also a person is not to be treated as unable to make a decision merely because they are made unwise decision. And of course, we see this insurance seen sometimes where you may take the view that the decision that your client is making good instruction tailgating may not necessarily what you regard as being reasonable, but it's not question off, whether the instruction reason or not North 10 listed as to whether or not they have mental capacity or not, so person is not between was unable to make this. Just because you're making a wise decision and any actor is done or decision that's made on the accent do have, said the officious lister involved in any act, done or decision that's made on behalf of the mother of a father and example, Blues must be made in such a way that it says that client's best interest. It's got to be the ones with the best dressing applied and before any actors done or decision to be taken. And one has to ensure that one time, at least restrictive step, insofar as respecting that person's right to freedom under Tom Semantic lasted in a state is the ability to grip. To make a decision that was set, one has to always assumed that a competent adult does have capacity to make decisions unless it's proven otherwise. And therefore, Section two subsection one B act like to say, provides that personal relax capacity. If, as a much of law, if it's shown that McKerrow time unable to make a decision for themselves in relation matter because often impairment off or disturbance in the front mind going so this could be done to former district down to, say, mental illness, it could be done to maybe a condition that have maybe a psychotic psychological condition, which is affecting their mind. Get brain. No circumstances cooking that now this loss of plastic a partial. It could be temporary, and it could change over time as well. So you may find that sometimes that happens. And therefore clients who may find may actually regain capacity for care time in some situations, in which case they may be in a position, then that situation to get to make a decision and then they may also they have to lack capacity snores. Enounters does very much in Section two, subsection three of the act provides that assessment that personal past in my decision must never be based simply on that person's appearance or assumptions about their condition when you're aspect of their behaviour. Indeed, even of age must have making assumptions just because of those factors. So when, for example, you may find that you're referring your client, a psychologist or psychiatrist PROTECTS assess litigation. Pastor. You find that first and foremost what they will be assessing is identifying what that person does, in fact having payment off disturbance in the function of the mind and the brain. And secondly, that impairment disturbance doesn't fight. I lied to them, unable to not get to make a specific decisions. So just having been payment is insufficient with them. Have to see what impact that has had on the ability. What does have the ability to actually make decisions and they're forced to from the approach and a person is unable is going to regard as an aid to make a decision. If you'll find out that cannot understanding promotion that's given to them or they cannot retain that information I cannot use a way of information is part of it to see your closest. What's not to communicate that decision whether or in other ways, those type of things, that look, if that's the case and left. Sometimes you have situations where clients my help medical conditions, which actually preventing them from being able to communicate their decision circumstances. Now let's assume we have a situation where it's a mother or father. Jordan scenes, for example, is found to lack litigation past. Let's say the court doesn't like the officious jester than to being a party to attend deficiencies listed those. So this is where you've got cases such as re M, for example, re and a Chartist 2009 case, which makes it very clear that the officials lister can in fact request a further assessment. Tom declined, even if there is a lot in a promotion will be available before courts on the facts of this particular case. Mother herself was a minor. Kapler, instructing us Lister artificial slickster, was representing their mothers interests on the mother theory. Officious. Lester had appealed against a refusal of the trial judge to allow mother to instructor psychiatrist to provide a court court, not a court did already have the benefit of sound residential assessment and also report from consultant psychologist. No indication that mother had very little chance of providing adequate parenting to trial without intensive years off intensive psychotherapy on both a local assaulting the Garden oppose any further assessment. But fish, the Court of pure picked a view that the official solicitor thought that further assessment was needed. Tender court should be slow to refuse this, and even if on the fact that appeared any further assessment, my group are being so you concede it's a very important case, which emphasized the fact that the court should be low, too slow to refuse to allow the assessment if deficiency list on the facts that feels that it is not safe on behalf of person. Relax selective engine capacity in the case of old and intrude at this case off. 2000 on uh, you left nine. Displace if or when I am very much confirms that position now. This is where some of you will be aware that when one doesn't need to see whether or not the officious justice to do to get engaged or not to do to become involved in referring to the guys in January 2017 5 The officials system divided on the role of distrust fishers. Do you see the courts that he says? Updated guidance as of January 2017 on Dat Dis replaced the previous practice Motor March 2013. On this planets, that really relates to the point of the official sisters litigation, friend of a protective party, in the context off from the decedent's and essentially at some of the key aspects off. This guidance does say that term protective part does requirement. It actually from the funny scenes and I mentioned earlier this is assumed to part 15 of the family procedures mentioned. And insofar as the position with the litigation friend is concerned, medication friend must be fairly incompetently conducted proceedings on behalf of the protective party into circumstances and in particular, when you look at paragraph 17 of this January 2017 bodies, it does say that the officials Lester's a litigation from the last resort. No person, clearly a West can be pointed, directed the detention friend without consent on the official sister. We're not exactly a point where there was another person is suitable, willing to act as a litigation Frank on the criteria that the official sister has put forward in deciding to consent to litigation from this. Firstly, in the case of a one adult date is used to the security of costume legal representation on Wanna be to ensure doctor cases of last resort and also deficient listing Martyak. Unless there is sufficient evidence to show that the person does our capacities complains of this gardens they're not. This is where, when we then look at assessment, start being done. This is where cases such as Reidy of eighties for this is redeemed. Children 2015. On what this emphasizes the need to ensure that assessments were undertaken to assess litigation positive must also be done in a concert. Part five of funding procedures 2010 on also Section 13 of your Children Families after 2014. Essentially this quarter appeal cases. One word by mother had had her first trances. She had an assessment by psychologist is not having lasted instigate indoors proceedings and she had the benefit of litigation friend in northern cities and then she substance had another child. Uh, I'm effectively shouldn't later sort to have a further assessment, but the application was not made to instructor fertile expert in accordance with Part 25 which meant that some paperwork from the previous atom seems in terms of other assessments were not sent to the second expert circumstances. And that's where, of course, it say that in such circumstances, such as this on the court should not be disadvantaging. The mother knew several stances in terms of not allowing her to have a fair assessment. Therefore, to ensure that it's a fair assessment when I skin short of using corn Part 25 there, for sure the documents are sent to propose. Expert assessment has two dimensions. Pasta, not this is where it does further guidance that's being made available as of last year. So we had, for example, late 2018 the president of the family division that stage that surgeons Mumbi, who put together guns off 27 18 as to position capacity to litigate and pursues involving Children. This is very useful gardens because it puts together a proposal after instruction type of questions that need to be according to psychologist or psychiatrist. When my looking instruct him to carry out a capacity assessment, also comes together step stepping into protecting, making those applications perfectly crew persons in most cases or certainly time which you come away. That could be a question mark a person's capacity. And there's also the other guidance, which was also issued in April 2018 that Steve Gardens about off parents with a lady disability. The funny scenes pants for disability guns also put together by the president off the final divisions. That's a change. Money. This was off tens of April 2018 on this is where that is linked him with the a particular case Lord up with Hansen could see here there was the case, for example, of a local folks do, apparently disability of 2017. Lots of a useful case looking at. And that particular case really looks that do type of support that knocked The thought is in particular may be applied sugar providing when you're looking at assessing persons with disabilities. In particular, those reference that good practice runs on working person with a disability. Now what you'll find is in these types of cases, uh, we have had that came to effect some years ago. Mardi participation directions. Those are the ones that came about as a result. Do Family Procedure Amendment number three use of $2070 came to effect on the 20 cent in November 2017 known as Part three a, which the vulnerable persons participation pursues and getting devotees. And these participation directions requires to give thought to do types of situations where by we may find that unless additional assistance is provided to person concerned that they may not be able to be represented in court. So, for example, if somebody does lack capacity or somebody does have on disability, that's very important to ensure that we have an assessment. And if that requires additional assistance, where the Bible into medium your cut specific additional facilities at court. Of course, that needs to be provided cases so that with guidance by the president, founding Delusion suggests Monday of April 2018 where the president not kinds particularly paragraph 16 of that times was emphasizing. The fact that there are many groups depends who are vulnerable in the context of soldier involvement. Onto this particular guidance, deals with does persons were by their disabilities is a sufficiently severe that they lack capacity to conduct legal proceedings, that this is where the President specifically referred to practice and working pains with learning disability guidance in my garden until what the president was emphasized is that we're paying. Does lucky Litigation busted? Must appreciate that my not consent charming accommodated from something that Section 20 Richard Section 76 of the 2014 miles on This is where this one's emphasizes that local thought to shoot indoor circumstances where there may need to accommodate that child look at its yurungkax is particularly where the child is very young, additional afford, do safeguarded legal representation for the parents and also different judicial scrutiny and all circumstances. And one of the foods that discarded emphasizes, particularly Paragraph 22 is that good local authority practice will include jointly agreed to refer in assessment procedures between Children, social services and also adult learning disabilities and mental services. Another partner agencies. And, sure, there are no circumstances. One of the other things just to finish office that when we have got cases, sell your plant, those luck against your past, it said. Once you've got the involvement of litigation friendly, sometimes may involved officials, Lester is you need to keep the show, bask in the review and therefore will be away with the assessment. Start down more times than not, They indicate that the person lacks capacity at this material time. Of course, capacity is a matter which kept under review. I made a promise to today to review the position to capacity. Okay, so can I Thank you very much for listening. The whole plus been in use for a session for two days. In terms of looking at issues over capacity, there are some questions that put together which you may find helpful. I guess I just discussed with you. Thank you very much for listening to next time. Thank you, but
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