Making a personal injury claim on behalf of a child

Sharon Parsons of Coodes Solicitors’ Personal Injury team outlines some of the considerations if you are making a personal injury claim on behalf of a child.

If a child is injured in an accident or through medical negligence they may be entitled to compensation. If you are the child’s parent or primary carer you can make the claim on the child’s behalf.

There are a few differences if you are making a claim on behalf of a child, rather than an adult. Having a basic understanding of how child claims differ could help you to protect their damages.

The limitation period for child personal injury claims

Most personal injury and clinical negligence claims are subject to a strict three year limitation period. This means the claimant has three years from the date of the injury, or knowledge of the injury, to submit their claim.

The limitation period works differently in child claims. You can submit a personal injury claim as soon as the accident has happened or anytime up to the child’s 18th birthday. The claim will not be subject to any particular deadline until the child turns 18.

Once a child reaches the age of 18, if the parent has not already made an injury claim on their behalf, they have three years to start their own claim. In other words, the child has until their 21^st birthday in which to make a claim.

Appointing a litigation friend

Someone under 18 cannot pursue a personal injury claim and must instead appoint a litigation friend. This is someone who will instruct a solicitor and submit the claim on their behalf. The role of a litigation friend ends if a child reaches the age of 18 during the proceedings.

In most cases, a parent or guardian will be the litigation friend. A litigation friend must be independent and able to represent the best interests of the child. That means you cannot be a litigation friend for a child who was injured if you are potentially partly or wholly responsible for the injury. For example, if you were driving with the child as a passenger and had an accident which was wholly or partly your fault, another parent, grandparent or close relative will need to act on the child’s behalf instead. Your lawyer can advise you on your suitability to be a litigation friend.

A litigation friend’s main duties are:

1. To fairly and competently conduct the claim on behalf of the child.
2. To have no personal interest in the claim which is adverse to that of the child.
3. To take all steps and decisions in the claim only for the benefit of the child.

If you are a litigation friend you must file a certificate of suitability with the court. This confirms that you consent to act and know the claimant is a child. It states that you can fairly and competently conduct proceedings on behalf of the child and have no conflict of interests.

As the litigation friend you also have to agree to pay any costs in relation to the proceedings.

Settling a child’s personal injury claim

In any personal injury or clinical negligence claim, settlement is reached through negotiation or ordered by a Judge at trial.

However settlement is agreed, the court has to approve the award on behalf of a child. The Judge has a responsibility to make sure that the terms of the settlement are fair and reasonable. That means the damages should not only cover the injury but any losses and future treatment costs.

Court proceedings have to be issued and the case is then listed before a Judge at a County Court nearest to where the child lives.

The litigation friend and the child will attend the hearing along with their solicitor. By that stage medical evidence will have been obtained to show what injuries the child suffered and it is for the Judge to be satisfied that the amount of compensation agreed between the parties fairly represents the injuries suffered by the child.

Whilst parents acting as litigation friends often worry about having to attend the approval hearing, this is usually a short, private and relatively informal event.

Securing compensation for a child

The Judge will consider the circumstances along with the medical evidence and, if satisfied, approve the amount of compensation agreed. The compensation will be paid into the Court Funds Office, where it will be held in a special investment account until the child reaches the age of 18. When the child turns 18, they must apply to the court to receive the full amount and interest accrued.

In cases in which the award for compensation is small, the Judge may simply order it is paid direct to the litigation friend to be put into a savings account for the child’s use.

In some instances that involve larger sums we ask that a small initial payment is made to a child while the rest of the compensation money is kept in a special investment account. It can be difficult for a young child to be told they must wait until they are 18 to receive damages, especially if they have been through a traumatic experience. As a parent, you may want to be able to give your child something immediately to acknowledge the challenges they have faced. Being able to access a small portion of the compensation money immediately means you can, for example, treat them to a new computer or special toy.

If your child has been injured through clinical negligence or in an accident, you will have lots to deal with. Your priority will be supporting your child and the whole family. Compensation can go some way to helping you get your lives back on track now and for the future.

Sharon Parsons is an Accredited Litigator with the Association of Personal Injury Lawyers. For advice on any of these issues, please contact Sharon in the Personal Injury team at Coodes Solicitors on 01326 213033 or sharon.parsons@coodes.co.uk