‘Capacity’ Guidance

The Court wants to check my capacity – what does this mean?

This page gives answers to frequently asked questions by people who have been told by the Judge in the Family Court to have their ‘capacity’ checked. People can be involved in the Family Court in lots of different ways, as a parent, partner, family member or a friend and they might not have a solicitor to help them.

What does ‘capacity’ mean?

Capacity is about making decisions. To make a proper decision you need to be able to do 4 things:

  1. understand information about that decision
  2. remember the information long enough to help you make the decision
  3. use the information to think about the different choices you have and to think about the good and bad things for each choice
  4. tell people about the decision you have made, if necessary, using things like sign language or communication books

The law automatically thinks that everyone over the age of 16 can do those 4 things and make decisions about where they live and about looking after their money, about family life and about legal problems but sometimes their ability is questioned.

Why does the Judge want to know about my capacity to make decisions?

If your ability to make decisions about the children or legal problems is questioned when you are involved in a family court case, it is very important for the Judge to know whether you can make proper decisions about the situation.

If the Judge thinks you might be struggling with making decisions the Judge may ask to have your capacity checked, so the court is sure about whether or not you can make proper decisions about the problem. Mostly this will be your ability to make decisions about instructing a solicitor (telling a solicitor what to say to the court for you and understanding his advice) or whether someone needs to do that for you.

Your capacity won’t be checked just because you make a decision which other people disagree with, there must be a reason to think that you are struggling to do one or more of the 4 things (listed above) necessary to make proper decisions in this situation; it does not mean you cannot make proper decisions in other areas of your life.

How will my capacity to make decisions be checked and by who?

Capacity is usually checked by types of doctors called Psychologists or Psychiatrists, but it can sometimes be others like your GP or a speech and language therapist. You will be invited to a meeting where you will be asked lots of questions about your health, any disability you have, what school was like for you and any problems you think you have with learning. You may be given some puzzles to solve or asked to do certain tasks like reading or a word quiz, or fill in a tick sheet with lots of questions about what you can do for yourself. All of these things will be used to see what you find difficult and may need help with.

You could also be asked about:

  • what the different professionals do (e.g. social workers, solicitors, Judge)
  • how court hearings work and who is allowed to talk and
  • what decisions could be made about the children, now and in the future

Normally a report or letter will be sent to the court and you will be told what it says. It will help the Judge making the decisions about what needs to happen next.

What do I need to do to get my capacity checked?

If the Judge has asked to check your capacity you will be told who to meet with, when and where. It is important that you go to this meeting and do your best so you can show what you can do for yourself. If you wear glasses or a hearing aid, or use a communication book or any other type of communication aid you must bring them with you. You must also tell the truth, because if you do struggle it is better that the court knows so can they can find you the right help. Before the meeting you may want to talk to friends or relatives about this or get legal advice. The websites below might also be useful to find out more.

Can I say no to having my capacity checked?

Yes. The court cannot make you go to the meeting. If you say no it will be for the court to make a decision about your capacity on the evidence it has.

What does the Court get told about my capacity? What happens next?

There are three things the court could be told:

1. You can make proper decisions in this situation without help

If this happens you carry on as you did before.

2. You can probably make proper decisions in this situation with some help

You will be offered help, for example by a ‘lay advocate‘ or support worker who will talk to you about what is being said, help you read documents and explain or repeat anything that you are not sure about. They might go to meetings or the court with you to make sure you understand all the important parts and that you get a chance to say what you want to.

3. You cannot make proper decisions in this situation even with extra help

If the Judge agrees, he will say that you ‘lack capacity‘ and ask someone to make decisions in the court for you – this is called a ‘litigation friend‘.   This person could be someone you know, a family member or friend (not already part of the case) or if no one else can do it, it will be the ‘Official Solicitor’, independent people who are paid to do this. You will still be asked your views and go to court but it is the litigations friend’s role to make the final decisions for you.

What can I do if I don’t agree that I need a litigation friend?

You can tell the Judge and he will consider your views when deciding whether you lack capacity and should have a litigation friend. Remember, if your ability to make decisions gets better, it can be looked at again.