Where a child has suffered injury as a result of negligent medical treatment, parents and carers are often faced with uncertainty about whether legal action can be taken and how such a claim would operate in practice. Claims involving children raise particular legal, procedural and evidential issues, and it is important to understand how these differ from claims brought by adults.
While the underlying legal principles of clinical negligence apply equally to children, the law provides additional protections to ensure that a child’s interests are properly safeguarded throughout the process.
Who can bring a claim on behalf of a child?
A child does not have legal capacity to conduct court proceedings. As a result, any medical negligence claim must be brought by an adult acting as a litigation friend. This is most commonly a parent, but it may also be a legal guardian or another appropriate adult where necessary.
The role of the litigation friend is to act in the child’s best interests at all times. This includes giving instructions to solicitors, considering expert evidence, and making decisions about the progress of the claim. The litigation friend does not have a personal financial interest in the claim, and any compensation recovered belongs to the child.
The court must be satisfied that the litigation friend is suitable and able to act fairly and competently. If concerns arise about suitability, the court has the power to appoint an alternative litigation friend.
The legal test for medical negligence involving children
The legal test in children’s medical negligence claims mirrors that applied in adult cases. It must be established that the healthcare provider breached their duty of care and that this breach caused injury or harm to the child.
Breach of duty is assessed by reference to whether the care provided would be supported by a responsible body of medical opinion. Independent expert evidence is required to address this issue. The court does not lower the standard simply because the patient is a child, but the clinical context is often different, particularly in neonatal and paediatric medicine.
Causation requires proof that the negligent care caused the injury or made the outcome materially worse. This can be complex in children’s cases, especially where the child has underlying medical conditions or where harm has developed over time.
Common scenarios giving rise to claims
Medical negligence claims on behalf of children arise in a wide range of clinical settings. A significant proportion relate to maternity and neonatal care, including failures during labour, delayed delivery, misinterpretation of fetal monitoring, and inadequate neonatal resuscitation.
Claims may also arise from delayed or missed diagnosis of infections, genetic or metabolic conditions, and other serious illnesses. In paediatric settings, failures to escalate concerns, delays in referral to specialist services, and inadequate monitoring can all give rise to potential claims.
Some claims involve a series of events rather than a single incident. When assessing such cases, it is often necessary to consider the overall management of the child’s care rather than focusing on one isolated decision.
Limitation and time limits in children’s claims
Children benefit from special limitation rules designed to protect their rights. The usual three year limitation period does not begin until the child reaches the age of 18. Court proceedings must therefore generally be issued by the child’s 21st birthday.
A claim may be brought at any time before that date by a litigation friend. There is no requirement to wait until the child becomes an adult, and in many cases there are good reasons to investigate and pursue a claim earlier.
Although limitation is extended, delay can still have consequences. Medical records may be lost or incomplete, and clinicians’ recollections may fade. Early investigation can also assist in securing funding for care, therapy or equipment where appropriate.
Court approval of settlements and awards
Any settlement of a medical negligence claim on behalf of a child must be approved by the court. This applies whether the claim settles before or after proceedings are issued.
The purpose of court approval is to ensure that the settlement is fair and that the compensation adequately reflects the child’s injuries and future needs. The court will consider medical evidence, expert reports on future care and prognosis, and advice from the child’s legal representatives.
If compensation is awarded, it is usually held by the court or placed into a suitable investment arrangement until the child reaches adulthood. In appropriate cases, interim payments may be authorised to meet immediate needs such as treatment, therapy or specialist equipment.
Assessment of damages and long term impact
Assessing compensation in children’s claims often requires careful consideration of long term consequences. Injuries sustained in childhood can affect education, independence, employment prospects and quality of life well into adulthood.
In cases involving significant or permanent injury, such as neurological damage, expert evidence is required to assess future care requirements, accommodation needs and support costs. This forward looking approach distinguishes many children’s claims from those involving adults.
The complexity of this assessment underlines the importance of specialist expertise.
Relationship between complaints and legal claims
Parents may pursue an NHS complaint alongside or before seeking legal advice. While the complaints process can provide explanations and acknowledgements, it is separate from the legal process and does not determine whether negligence has occurred.
Importantly, pursuing a complaint does not extend or suspend limitation periods. Legal advice should therefore be sought independently of any complaints process.
How we can help
We regularly advise parents and carers on potential medical negligence claims on behalf of children, including claims arising from maternity care, neonatal treatment, paediatric misdiagnosis, delayed treatment and failures in ongoing care.
An initial discussion allows us to consider the circumstances, explain how the litigation friend process operates, advise on time limits, and assess whether further investigation is appropriate. Where a claim is pursued, we guide families through each stage of the process with a focus on protecting the child’s long term interests.
If you would like to discuss concerns about a child’s medical treatment in confidence, please contact us to arrange an initial consultation.
Samuel nurse
Clinical Negligence Paralegal
Samuel Nurse is a clinical negligence paralegal progressing his legal career through the CILEX route. In his role he focuses on developing a strong understanding of complex medical issues, applying analytical skills and attention to detail to support the progression of claims. His earlier experience at a nursing expert witness company gave him valuable exposure to clinical negligence work and the importance of expert evidence in litigation, which now informs his approach as a paralegal.
