Child Injury Claims: Understanding the Infant Approval Hearing Process
All claims involving a child require a litigation friend. A litigation friend is a non-legally qualified adult who will conduct the proceedings on the child’s behalf. It is usually a parent, guardian, family member or friend of the child.
The courts are not satisfied that it is acceptable for a litigation friend to simply agree to a settlement figure and receive the payment directly. The Courts place emphasis on protecting children’s best interests.
Therefore, the law requires that any settlement involving a child that has been agreed between the representing parties is to be approved at Court by a Judge. This consideration of the settlement amount takes place at an Infant Approval Hearing/ Damages Approval Hearing.
What is the purpose of Infant Approval Hearings?
- Fair – the court wants to be satisfied that the settlement amount is fair for the Child and that there is no incompetence or mistakes on the legal professional’s behalf.
- Protection – all funds are protected and invested in an investment fund for the Child to access when he/she is 18.
- Discharge – as the settlement approval comes from the court, there is confirmation that the Defendant is properly discharged from the claim
Advice on Quantum – what is this?
Before settlement negotiations commence, the instructing solicitors must obtain advice from a barrister for the value of the child’s claim. The advice obtained from the barrister is called ‘advice on quantum.’ The barrister will consider the child’s expert medical evidence and any other losses (e.g. travel expenses, medical expenses) and value the child’s injury.
The valuation provides guidance for the instructing solicitors to commence negotiations and ensure that the amount offered by the defendant’s representatives is fair and accurate.
Once settlement has been agreed between the parties, the instructing solicitor will file appropriate documents at the child’s local County Court and await for a hearing date to approve the settlement.
The Infant Approval Hearing
Both the child and litigation friend are required to attend the hearing. The instructing solicitors may also attend or instruct a barrister to attend on their behalf. It is not very common for the defendant’s representatives to attend.
On commencement of the hearing, the judge must be provided with a copy of the child’s birth certificate. The hearing usually takes approximately 20 minutes and takes place in the Judge’s chambers.
The judge will normally ask the child and/or litigation friend if the child’s injuries have recovered in line with the prognosis provided in their medical evidence. This is because the judge would like to confirm that the child has achieved a full recovery from their injuries before the case is settled.
On consideration of all information available, the judge will either approve or refuse the settlement.
If the settlement is refused by the judge, it is usually because they consider that the settlement figure should be higher based on the injuries. The defendant’s representative will then need to make an increased offer.
If the settlement is approved, the defendant’s representative will make a payment for damages to be invested into the Court Fund Office and will accumulate interest until the child is 18 years old. Once the child reaches 18, he/she can apply for the damages to be released to them directly.
Early payment for the compensation can be made by way of an interim payment. However, the litigation friend must be able to prove that the payment will help the child by submitting evidence. The judge will then consider the evidence and approve or refuse the request accordingly.
If your young child has suffered an injury due to someone’s negligence and has been awarded damages, a litigation friend must be appointed to represent the child in legal matters until the child turns 18. The awarded damages will typically be managed and protected by the court until the child reaches adulthood. If you would like legal advice one of our personal injury experts please call 0330 822 3451 or request a callback.
