If a child suffers injury as a result of an accident, they are entitled to make a claim in exactly the same way as an adult is. However, as a child is regarded as not being able to provide instructions and to make decisions that are necessarily in his/her best interests, a litigation friend is appointed to act on the child’s behalf. Anybody who is under the age of 18 years is regarded in law as being a child.
“The litigation friend is usually, but does not have to be, the child’s mother or father.”
It is important, however, to make sure there is no conflict of interest between the child and the person who is acting as the litigation friend. For example, if a child is a passenger in a vehicle being driven by his mother, it would be appropriate for his father to be the litigation and not his mother as there is a possibility that his mother may become a defendant in the proceedings.
The claim itself proceeds in the same way whether the claimant is a child or adult. All settlements involving a child, however, have to have the court’s approval. This is known as the “Infant Settlement Hearing”. This is so that the court can be satisfied that all parties have acted in the child’s best interests and that in all the circumstances, the best settlement has been reached. The court hearing is very informal and usually involves the child, litigation friend and legal representative having to attend. As the settlement has already been negotiated, the Defendant does not attend.
The court will also make an order at the Infant Settlement Hearing for the compensation to be invested in a designated savings account by the Court Funds Office. The award is then invested until the child reaches 18 years of age and at that point, a request is made for the funds to be released. At the same time, the court will usually agree that any financial loss incurred by the litigation friend can be released immediately.
At the Infant Settlement Hearing, it is possible to invite the court to release funds to the child immediately. The court will, however, only consider such requests if the monies are to be put towards something, e.g. educational, for the benefit of the child. The court would be reluctant to release monies for the provision of clothes or toys. It is also possible to make an application to the court at any stage up until the child’s 18th birthday. Again, the court will only be interested in releasing funds if it is for the direct benefit of the child.
The three year limitation period also applies to children but instead of commencing on the date of the accident, the three year period commences on the child’s 18th birthday which means that the child has until his 21st birthday to issue proceedings.
Legal aid is not available for these types of claim and we therefore offer assistance under a No Win No Fee Agreement. For free legal advice, contact our specialist Personal Injury team on 023 9247 9290 (Havant) or on 023 8086 3311 (Southampton). Alternatively, complete the response e-mail slip.