Capacity Assessment of Children
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.
Melanie Carew (Chair)
DJ Judith Crisp
HHJ Karen Venables
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research and information on how solicitors reach their decisions on whether a child is competent to instruct and draft guidance to ensure consistency of approach.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.
- To collate any existing material including training from all sources which solicitors rely upon (including from Law Society, ALC, published articles, any research).
- To consider where assistance may be accessed to inform any future guidance and what expertise would be necessary.
- To consult on the processes and methods by which solicitors currently undertake the assessments of the child’s capacity to instruct.
- To consult the Family Justice Young People’s Board.
- To draft new guidance on how the assessment should be undertaken and what needs to be included (and possibly consult on the content?).
- 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.