When a child is injured at birth, it is a naturally distressing time for the parents. One less thing to worry about, however, is that you’ve probably not missed the opportunity to take action. To explain why, we need to look at how the legal system works when an injured child might require compensation.
The Clock Doesn’t Start When You Think it Does
Most personal injury claims must be made within 3 years of the incident taking place. For adults, that’s 3 years from the day you were hurt. For children, it’s different.
And for children, the 3-year window of opportunity doesn’t even start ticking until the child’s 18th birthday. They then have until their 21st birthday to make a claim in their own name. So if a child is injured at birth, it’s not a case of having to bring a claim before they start school, or a case where the limitations deadline expires while they’re still a teenager. It will be hanging over them into early adulthood.
For this reason, the problem of bringing a claim too early is more keenly felt by parents who feel they want more years of seeing and understanding their child before going down the route of a compensation claim. Was it too long or too late? Not at all, you and the law were in this together.
Why These Cases Take Years and Why That’s Intentional
Claims relating to birth brain injuries are typically high value, but values aren’t awarded for the injury itself: they’re to cover the lifetime of additional costs, and the lost opportunities, that child faces. That includes everything from specialist equipment and therapies, to adapted accommodation, loss of earnings.
Part of the settlement will be a lump sum, calculated based on expert advice about how much money, invested wisely, will generate enough income to cover the child’s extra costs for the rest of their life expectancy. The rest will be ongoing payments.
In England and Wales, in front of a Judge, settlements are reached through the ‘exchange of consent’. The Judge will consider whether the actual value is correct and give the amount their formal approval. Healthcare providers do not have a legal obligation to throw in annual index-linked top-up payments, but they do so in almost all cases. A good Cerebral Palsy Solicitor knows how to secure Reviewable Indexed Annuities to protect their clients.
Sometimes, negotiations will continue right up until trial, which is stressful for everyone. Going to trial is costly and a final outcome would always be risky for both sides. But the threat of it can push a provider towards a better offer, if you have a legal team with a strong track record of winning in court.
Remember: once it’s settled it’s over. No going back. If the child’s needs change, tough. For 99% of claimants, that’s what you’re signing up to when you settle, but a good legal team will talk you through the risks and the benefits. After you’ve done your waiting, it’s important to get the best deal.
What “Litigation Friend” Actually Means
Parents are not obliged to wait until their child turns 18 years old to start legal action. They can take action now as their litigation friend.
The litigation friend is a formal legal role and is the name given to the person who has the legal right to act on the child’s behalf during the case. This will usually be the parent or guardian and they will be able to instruct a solicitor, read documents and decide on any settlement offers before the child turns 18 years old.
Most of the time there doesn’t need to be a court hearing to officially appoint the litigation friend. This is just something that automatically happens at the start of the case for most birth injury claims.
The litigation friend must only act in the best interests of the child. This means they can’t agree to any early offers they believe undervalue the lifetime of care a severely disabled child will need. They also need to make sure the case doesn’t settle too early or too late.
Interim Payments Bridge the Gap
A lengthy legal process does not imply that a family has to wait for years to receive any financial assistance. Interim payments are partial payments made throughout an active claim, prior to the final settlement.
These payments cover what the child needs at the time: private physiotherapy, speech and language therapy, specialist seating or mobility equipment, and adjustments to the family home. The defendant makes these payments, typically NHS Resolution for cases involving NHS trusts, and they are then deducted from the final settlement.
Early interim payments make a real difference. A two- or three-year-old having access to intensive therapy may have better results in the long term than a child who has to wait. The legal process can support that, even while it’s still running.
The Timeline is on Your Side
There’s a version of this story where parents feel like the legal system is a stressful, unfriendly place with deadlines all around. That isn’t the world in which birth-injured children and their families live.
The law has deliberately built space for children who can’t advocate for themselves. The limitation protections, the litigation friend role, the ability to secure payments before settlement, these exist because the people who wrote the rules understood that these cases are different.
You don’t need to have everything figured out before you pick up the phone. The timeline gives you room to get there.
