The legal process of bringing a claim for injury compensation on behalf of a child in Ireland differs somewhat from that involving an adult. Below is a guide to how a parent or ‘next friend’ can initiate a claim.
Issuing Legal Proceedings on behalf of a child
Legal proceedings on behalf of a child are instituted or defended by an adult acting on behalf of the child. When proceedings are instituted this individual is called the ‘next friend’ and when proceedings are defended this person is called the guardian ad litem.
The term guardian ad litem means person nominated to defend the proceedings on behalf of the child in accordance with the rules of court and although this is often the parents or legal guardian of the child within the meaning of the Guardianship of Infants Acts, it is not always the case and it can be any fit and proper person who does not have a conflict with regards to the child’s interests.
It should also be noted that there are specific statutory provisions in the Child Care Act 1991 for the appointment of a guardian ad litem to represent the interests of a child in proceedings under that act which involve placing a child in the care of the State or subjecting their parent to supervision by the Child and Family Agency.
The next friend or guardian ad litem need to execute a consent to act on behalf of the child and authorisation for their solicitor to act on their behalf that needs to be lodged in the relevant court office and needs to confirm that they have no interest adverse to that of the child. The solicitor is instructed by the next friend and prosecutes the proceedings upon their instruction for the ultimate benefit of the child.
Responsibilities of Next Friend or Guardian Ad Litem
Becoming a next friend or guardian ad litem is an onerous responsibility since if the legal proceedings are unsuccessful the other party would be entitled to an order for costs against the next friend or guardian ad litem, who would be entitled to an order indemnifying them for such costs from the child’s estate.
In many cases in which proceedings are taken with the child as Plaintiff there would be nothing in the child’s estate so therefore leaving the next friend liable for the costs order. The Next Friend or Guardian Ad Litem is in the position of a fiduciary regarding the child, and cannot profit from their office or act contrary to the child’s interests.
A person cannot be a next friend if it is possible they may be joined to the legal proceedings as a defendant or third party in their own right since their interests would clash with that of the child.
Difficulties due to lack of capacity
At common law a person below the age of majority lacked legal capacity, and that age was originally set at 21 years of age. Section 2 of the Age of Majority Act 1985 changed this to 18 years of age.
A child under the age of majority cannot enter a legally binding contract save for necessities. This means that a child cannot enter a contract of agency with a solicitor to institute and prosecute legal proceedings on his or her behalf. Furthermore settlement of legal proceedings involves a contract whereby it is agreed that the original claim is extinguished in consideration of the terms of the settlement being performed. This cannot take place if one of the parties is a child.
A person under the aged of 18 years is called a minor or under previous legal terminology an infant.
A person may be considered having legal capacity as an adult before the age of eighteen years if they are married although a person cannot get married under the age of 18 years unless they have the prior approval of the High Court or Circuit Family Court under section 33 of the Family Law act 1995.
In several U.S. States there is provision in their civil codes for ’emancipation proceedings’ which allow a young person to apply to court be declared legally as an adult before the age of eighteen years. There is no such provision in Ireland, save as noted above for marrying with court approval under the age of eighteen.
Types of Proceedings involving Children
Other than proceedings under the Child Care Act 1991, legal proceedings involving a child generally involve the child suing as Plaintiff for a tort, for example personal injuries in relation to negligence or trespass to the person or for defamation in relation to false accusations.
A child can also be a party to probate claims to condemn or prove a will or to bring a claim under section 117 of the Succession Act 1965 when they are in the unfortunate predicament of having a parent die before they reach the age of majority.
It is rare for a child to be involved in other forms of proceedings, a child cannot contract and section 57 of the Succession Act 1965 entitles an executor or administrator to appoint trustees to manage an infant’s property on their behalf even if there are no express provisions in a will relating to such a trust.
Similarly sections 18 and 19 of the Land and Conveyancing Law Reform Act 2009 provide that if a person conveys land to an infant, and unless there is something in the instrument appointing trustees to manage the land, the person or their legal personal representative is regarded as a trustee of the land.
Since children cannot contract and have land or assets controlled by trustees who can sue or be sued in their own name and they don’t have to be named in such proceedings unless it is alleged the trustee is acting in breach of trust.
Similarly proceedings against a child are rare for the reason that children rarely own significant assets or commit torts on their own behalf.
Compensation Award Settlements Involving Children
If proceedings involving a child are to be settled, approval of the court before which the proceedings have been commenced is required in a procedure termed an infant ruling. This is effectively applying for a consent order that extinguishes the claim provided the sums tendered in settlement are lodged in court.
Such an application is made by an ex parte docket grounded upon an affidavit to a judge of the court before whom the proceedings are before. The grounding affidavit should exhibit the child’s birth certificate (so that the court office will know when the child is over 18), and contain an opinion from counsel as to whether in the opinion of that barrister the settlement should be accepted. If the proceedings are personal injuries proceedings medical reports should be exhibited too along with any other relevant documentation.
The next friend or guardian can ask the court to rule the settlement, that is accept the offer and order the money be lodged in court until the child is over 18, or ask the court to reject the offer under section 63 of the Civil Liability Act 1961. Applying for an order under section 63 of the Civil Liability Act protects the child since the normal rule in litigation that there is a liability for costs if you are successful but do not get a result better than a formal tender or lodgement in court does not apply if the court approved the rejection under this section.
The money can be paid out early for a purpose related to the child’s education or some other purpose that the court deems fit. Applications for a payment out in the High Court can be made to the Master or in the Circuit Court to the County Registrar. The money can be paid out without an order upon the child turning 18 and applying with a birth certificate.
If a significant award is made by the High Court it may direct that the child be placed in wardship rather than the money being lodged in court. In such circumstances a Committee of the Ward of Court will manage the child’s assets on his or her behalf and are accountable to the President of the High Court for the performance of their functions.
Personal Injuries Assessment Board
Section 4 of the Personal Injuries Assessment Board Act 2003 allows an application for assessment to be brought on behalf of a child by a next friend. Section 35 of the Act provides that if an assessment is accepted, an application must be brought to have it rules by a judge.
The application should be brought before the court with jurisdiction to have made an award in the same amount as the assessment (less then €15,000 District Court, less than €60,000 Circuit Court, all other cases High Court).
There is no provision in the Act for ruling a rejection and given the adverse consequences in rejecting an assessment and not obtaining a better result at trial (in which case legal costs cannot be recovered), it may be prudent to accept an assessment and then ask the relevant court to reject it if there are concerns that it is inadequate.
Statute of Limitations for Children
Unlike claims on behalf of adults, for which there are strict time limits under the Statute of Limitations (one year for defamation, two years of personal injuries, six years other torts), the time limit under the Statute of Limitations does not run for a child until they turn 18.
Courts can and do however dismiss claims in which the delay since the event took place is so great that it would be impossible to have a fair trial. Although it would therefore be possible under the Statute of Limitations for a person who is injured when a toddler to wait until nearly 2 years after their eighteenth birthday to bring a personal injuries claim, there would be a strong risk of a court dismissing such a claim given the difficulties in a defendant defending a claim given the passage of time.
Time limits under other pieces of legislation (claims for injuries on aircraft under Montreal Convention or the time limit under section 117 of the Succession Act 1965) do not benefit from this provision and therefore time limits should be strictly observed.