Making a legal claim for your injured child: what you need to know
If your child has been injured at birth, you may want to make a legal claim. But the process is different from making a claim for yourself. Sarah Jones, senior associate solicitor at Irwin Mitchell, explains
When a child is harmed as a result of clinical negligence, the effects can be life‑changing – not just for the child, but for the whole family.
If you are thinking about bringing a legal claim, it is important to understand that claims made on behalf of a child are treated differently from claims made by adults. Below, I explain the key differences, the practical steps involved, and how specialist solicitors can support you throughout the process.
This article is for general information only and does not constitute legal advice. Every case depends on its individual circumstances. A specialist medical negligence law firm should be able to offer an initial free consultation to discuss your situation.
Who can bring a claim for a child?
Children (those under 18) cannot bring a legal claim themselves. Instead, a litigation friend – usually a parent or legal guardian – brings the claim on their behalf.
The litigation friend:
Gives instructions to the solicitor
Makes decisions about the case
Must always act in the child’s best interests
This is different from an adult bringing their own claim. An adult with capacity can start proceedings in their own name and make decisions independently, without needing a litigation friend.
What if an adult lacks capacity?
Adults who are unable to manage a legal case because of a condition affecting their decision‑making ability (for example, a brain injury, learning disability, dementia or serious mental health condition) are known as protected parties. Like children, they also require a litigation friend.
To have capacity to bring a claim, a person must be able to:
Understand legal advice
Make informed decisions
Clearly communicate those decisions
If you are unsure whether a loved one has capacity to bring a claim, an experienced solicitor can guide you through this sensitively.
What does the claim involve?
Initially you and your lawyer will work together to obtain all the medical records and your recollection of events, then to instruct independent medico-legal experts to assess what happened.
In birth injury cases this usually means obtaining reports from independent experts in fields such as midwifery, obstetrics, various paediatric specialities, neuroradiology and neurology. The huge advantage of this process – which is called “investigating liability” – is that you will receive answers as to what went wrong and why, and whether there is a negligence case to be pursued.
This is an opportunity for families to receive more information than ever before, from leading experts. Often just an understanding of what happened at birth makes a huge difference. If no negligence if identified, or if no difference has been made, then the case will finish at that point. If there is a claim then you and your legal team can proceed to assess your child’s needs as a result of the negligence.
Time limits (limitation)
If you are considering a medical negligence claim, it is always sensible to seek legal advice as early as possible. Strict time limits apply, and these cases often involve a significant amount of preparatory work.
Time limits for adults
For adults, the usual time limit is three years from:
The date of the negligent treatment, or
The date you first became aware that the injury may have been caused by negligence (known as the “date of knowledge”)
If you’ve experienced a birth injury, then the three years will normally start from the date you gave birth.
Time limits for children
A child’s claim is treated differently. The usual three‑year time limit does not start running until the child turns 18. This means a claim must generally be issued by the child’s 21st birthday.
If a child or adult lacks capacity to conduct legal proceedings, the limitation period may not apply at all. In other words, you can make a claim on their behalf even after they have turned 21.
Why early advice still matters
Although a child’s claim benefits from longer timescales, there are strong reasons to seek advice as soon as possible:
You may have a related claim of your own with a much shorter deadline
A significant amount of work is required before court proceedings can be issued – the limitation deadline is a final deadline, not a target
Evidence is strongest early on: medical records are more recent, witnesses’ memories are fresher, and expert opinions are more current
Even if the extent of the harm to your child is not yet fully clear, it’s still better to start early rather than wait. After consulting with doctors, your solicitor can help you decide whether to postpone elements of the claim for now. While the final assessment and compensation may need to wait, you can still work through the liability stages of proving negligence. If you are successful in this, then you may receive interim payments that will help your child cope with their disability or conditions (see below).
Court approval of settlements
A key difference in a child’s claim is that any settlement must be approved by the court. This takes place at an infant approval hearing, where a judge reviews the proposed settlement to ensure it is fair and genuinely meets the child’s long‑term needs.
Many families find this process reassuring, as it provides independent confirmation that the compensation agreed is in the child’s best interests and has been reached at the right time to assess this.
How compensation is managed
Once approved, compensation is usually:
Paid into the Court Funds Office until the child turns 18, or
Managed by trustees or a court‑appointed financial deputy where needs are complex
Because a child’s future needs often take time to become fully clear, these cases can take longer to settle. While the case is ongoing, the court can approve interim payments to fund essential support, such as:
Care and assistance
Therapies
Specialist equipment
Educational support
Assessing a child’s long‑term needs
In a child’s claim, compensation is assessed with a long‑term view, covering their needs for life. This usually involves working with families and a team of independent experts to consider:
Future care and support needs
Educational and learning support
Loss of future earnings or earning potential
Housing adaptations and transport needs
This process is typically carried out by a multidisciplinary team, including medical professionals, care and therapy experts, education specialists, and financial or actuarial advisers.
In more serious cases, periodical payment orders (PPOs) may be appropriate. These provide secure, index‑linked annual payments for life, usually to cover ongoing care costs. For a child, PPOs can offer reassurance that financial support will continue long after parents are no longer able to provide care themselves.
Because these claims often involve complex and long‑term planning, it is crucial to work with solicitors experienced in high‑value paediatric medical negligence cases.
Irwin Mitchell are one of our Trusted Legal Partners. You can find out more about them here. You can contact Sarah for initial free advice at Sarah.Jones@IrwinMitchell.com.
