Capacity Assessment of Children

Objective:

To provide advice on:

  • A standard process of how and when a solicitor assesses a child as competent, including the role of the guardian
  • The circumstances in which the solicitor should not assert that the child is competent. 
  • Procedure if the assessment of the solicitor is challenged.

Members:

Melanie Carew (Chair)
DJ Judith Crisp
Jaime Craig
Maud Davis
HHJ Karen Venables
Mavis Amonoo-Acquah
Matthew Pinnell

Terms of Reference:

Purpose of the WG:

  • To consider any existing guidance, research and information on how solicitors reach their decisions on whether a child is competent to instruct and draft guidance to ensure consistency of approach.
  • To provide advice on a standard process of how and when a solicitor assesses a child as competent including the role of the guardian.
  • To provide guidance on the circumstances in which the solicitor should not assert that the child is competent.
  • To obtain some expert advice to draw upon to develop such a standard process.
  • To provide advice on procedure if the assessment of the solicitor is challenged.
  • To consider whether there is a need for a change in the Family Procedure Rules to clarify the role of the guardian when the child is instructing directly.

Business Plan:

  1. To collate any existing material including training from all sources which solicitors rely upon (including from Law Society, ALC, published articles, any research).
  2. To consider where assistance may be accessed to inform any future guidance and what expertise would be necessary.
  3. To consult on the processes and methods by which solicitors currently undertake the assessments of the child’s capacity to instruct.
  4. To consult the Family Justice Young People’s Board.
  5. To draft new guidance on how the assessment should be undertaken and what needs to be included (and possibly consult on the content?).
  6. To consider whether there should be any Practice Directions or amendment to the Rules to supplement any guidance.

Outputs published by this working group:

Guidance on assessing child’s competence to instruct a solicitor (Word document). The aim of this guidance is to provide some consistency of approach while recognising that each child is unique and each case fact specific.