Bringing a claim on behalf of a child
It is possible for a child to recover compensation for personal injury. There are, however, a number of issues that arise.
Generally, the court will require that a 'litigation friend' bring the claim on the child's behalf, and the court will be involved in the process of agreeing any settlement and investing compensation funds.
As we'll see below, there are also time limits on when a litigation friend can file a personal injury claim on behalf of a child.
'Litigation friend'
A 'litigation friend' is a person appointed to represent a child who is bringing a personal injury claim. Normally the litigation friend is one of the child's parents or guardians.
A person who is to serve as a litigation friend for a child must be able to show that he can fairly and competently conduct proceedings on behalf of the child. He also needs to show that he has no conflict of interest in acting on behalf of the child. So he cannot act if, for instance, he was the driver of a vehicle in which the child was injured and there is a question as to whether, as the driver, he should bear some of the blame for the injury.
A litigation friend must also undertake to the court that he will pay any costs that the child is ordered to pay in connection with court proceedings, although he can be reimbursed for such costs from the child's assets.
Court approval for settlement
Although the litigation friend represents the child in proceedings, the court must approve any settlement agreed on their behalf. This is to ensure the settlement truly is in the child's best interests.
The approval process is more than just a rubber-stamping of the deal. The parties have to apply to the court for approval and if the parties agreed the settlement prior to the issuance of court proceedings, they must provide the court with an extensive amount of information about the claim. Among other things, they must supply details about the accident, medical reports, and an explanation as to how the parties have dealt with the question of liability.
Ordinarily, the solicitor or barrister acting for the child must also give the court their opinion as to the merits of the settlement.
Investment of compensation funds
In addition to any damages award, the court will dictate how the compensation should be invested before it is released to the child when they become an adult.
The child's litigation friend has an opportunity to inform this decision, with evidence or information about how the funds should be invested, but ultimately the court has the final say.
Where a child is awarded damages at trial, the default position is that the funds are paid into court and held in a special investment account. The child may apply to the court for release of the funds when they turn 18. Where funds have been invested, the child can apply to have the investments transferred into their name when they turn 18.
Note also that the court can allow part of a child's compensation funds to be used to meet expenses that the litigation friend has incurred.
And where only small sums are concerned, the court can order that the amount be paid to the litigation friend, who should deposit the money into a building society or similar account for the child's use.
Limitation period for child injury claims
The normal limitation period for personal injury claims is three years from the date the injury occurred or, for injuries that take the form of diseases that only become apparent gradually over time, the date that the injured person first became aware of the injury. If the injured party is to issue court proceedings in connection with the injury, they must do so within this period or the claim with be time-barred.
Significantly, however, in child injury cases the limitation period does not begin to run until the child turns 18. So if a litigation friend does not issue proceedings before the child's 18th birthday, the child may issue proceedings in their own right during the three-year period following their 18th birthday.
Getting help with a child injury claim
Parents or guardians considering making a claim for their child's injury will want to take competent professional advice, not only in relation to the claim, but also in relation to the obligations associated with serving as a litigation friend.
You can find a solicitor who specialises in personal injury law and has experience of pursuing claims on behalf of children in your area for free via solicitor matching services, which can also help you to understand the best course of action for your situation and whether you are even ready to hire a solicitor.
- Source:
- FindLaw
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