N (A Child)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 20 August 2008 |
| Neutral Citation | [2008] EWHC 2042 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD03P02333 |
| Date | 20 August 2008 |
[2008] EWHC 2042 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Public)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Munby
In The Matter of N (A Child)
In The Matter of Section 8 of The Children Act 1989
Case No: FD03P02333
In The Matter of Section 15 of and Schedule 1 To The Children Act 1989
Mr James Bogle (instructed by Bance Commercial Law) for A (the father) in the section 8 proceedings
Dr Michael Pelling (of Bance Commercial Law) for A in the Schedule 1 proceedings
Ms Kate Hudson (instructed by Goodman Ray) for N (the child)
G (the mother) appeared in person assisted by her McKenzie friend Mr David Holden
Hearing date: 21–25, 29 July 2008
This judgment is being handed down in public and may accordingly be published in this form without any restrictions.
But all persons are reminded that any further reporting of the proceedings to which it relates is or may be regulated by section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989.
I have before me an interesting point in relation to McKenzie friends' rights of audience.
The background
N was born in 2001. His parents were never married. Most of his short life has been taken up with the litigation between his parents. There have been proceedings under Part IV of the Family Law Act 1996, proceedings under section 8 of the Children Act 1989 (the section 8 proceedings) and proceedings under section 15 of and Schedule 1 to the 1989 Act (the Schedule 1 proceedings). I have dealt with the Schedule 1 proceedings for some time; more recently I have also assumed responsibility for the section 8 proceedings.
Throughout the time I have been dealing with the Schedule 1 proceedings the mother has been represented in those proceedings by solicitors and counsel; father has appeared in person with the assistance of a McKenzie friend, Dr Michael Pelling. On occasions during the Schedule 1 proceedings I have permitted Dr Pelling to address me and make submissions. My recollection, which is challenged neither by the father nor by Dr Pelling, is that it was Dr Pelling himself who suggested this, making the point, with which I agreed, that since the matters on which he sought to address me involved technical points of law and procedure it would be simpler and quicker if he, with all his knowledge of such matters, addressed me rather than the father.
The final hearing of the section 8 proceedings came on before me on 21 July 2008 pursuant to directions given initially by me and, more recently, by Pauffley J on 14 April 2008. On that occasion the mother had appeared in person, assisted by a McKenzie friend, Mr David Holden, and the father likewise in person assisted by Dr Pelling as his McKenzie friend. It is common ground that Pauffley J permitted both Mr Holden and Dr Pelling to address her. In a witness statement dated 22 July 2008 Dr Pelling, having referred to the principle that this should be permitted only in 'exceptional' circumstances, says “I can't recall [Pauffley J] making any specific finding as to what the exceptional circumstances were, if indeed there were any, and I rather think that problem was slurred over by everyone, including the Judge, in order to get on with the case as smoothly and expeditiously as possible.” In the unsigned draft of this witness statement, which Dr Pelling himself sent me before the sitting of the court on 22 July 2008, the passage I have just quoted continued, “It is my observation that this happens quite a lot in the secret courts of the Family Division and in Family proceedings in the County Courts. Whether it is lawful is another matter but not for me to say. It is also true that Mr Justice Munby himself has adopted the same approach in my observation when hearing various stages in [this litigation].”
The hearing – the events of 21 July 2008
As I have said, the final hearing of the section 8 proceedings began before me on 21 July 2008. The father was represented by Mr James Bogle of counsel, who was instructed by Bance Commercial Law, solicitors. Mr Bogle was attended throughout by Dr Pelling, acting now in the capacity of his instructing solicitors' clerk. The mother appeared in person, assisted by Mr Holden as her McKenzie friend. N, who in accordance with directions I had given on a previous occasion is a party to the section 8 proceedings and has a Rule 9.5 guardian acting for him, was represented by Ms Kate Hudson of counsel.
At the outset of the hearing, Mr Bogle, on instructions, objected to the mother's wish that Mr Holden be allowed to speak on her behalf, examine and cross-examine witnesses and make submissions. Mr Bogle's objections were two-fold: first, that the mother had not made an application to that effect at the start of the hearing as required by the President's Guidance: McKenzie Friends [2008] 2 FLR 110 issued by Sir Mark Potter P on 14 April 2008 (coincidentally the very day of the hearing before Pauffley J), nor had she given any notice of such application; secondly, and relying for this purpose on D v S (Rights of Audience) [1997] 1 FLR 724, that there were in any event no exceptional circumstances to justify Mr Holden being permitted to act in this way.
No-one had come prepared to argue the point. Since the parties in any event wanted time to discuss matters with a view to seeing whether the issues in the section 8 proceedings might be narrowed, or even resolved altogether, there was no immediate need for me to rule on the point. I therefore directed that skeleton arguments or similar documents be prepared by the next day. In accordance with that direction I received, in addition to Dr Pelling's witness statement, a witness statement from the mother setting out why, as she submitted, I should permit Mr Holden to represent her and make representations on her behalf, a skeleton argument from Mr Bogle and a skeleton argument from Ms Hudson.
The hearing – the parties' written submissions
In her witness statement the mother essentially made five points:
i) First, that she had been represented by solicitors until she “simply ran out of money and could no longer afford them.” The costs, she said, had been horrendous.
ii) Secondly, that she was unable to speak articulately, was very clearly emotionally involved, and would have great difficulty in properly presenting her case, which would include the cross-examination of witnesses including the father.
iii) Thirdly, that Mr Holden, a businessman and family friend, had for the past few months been assisting her, communicating with the guardian and her (the guardian's) solicitors, as well as appearing before Pauffley J and making oral representations on her behalf. He had, she said, been very helpful throughout.
iv) Fourthly, that the father had had the benefit of a McKenzie friend, Dr Pelling, throughout most of the proceedings and “I have never challenged this. Indeed, I would have thought that the same courtesy would have been given to me.” She said that, as the father had been represented by Dr Pelling, it never occurred to her that any objection would be raised to her instructing a McKenzie friend, adding that the father had known since April 2008 that she no longer had solicitors on the record.
v) Fifthly, that if I was not prepared to allow her application she would be left with no alternative but to ask for an adjournment, so that she could instruct new solicitors. That, as she pointed out, would mean the matter being stood over for a considerable period, something which, in her opinion, would be disastrous for N who, as he had told his guardian, wants “the trouble” to end. She concluded, “This matter has been going on for over 5 years. It must therefore follow that the circumstances are exceptional, for the sake of N.”
Mr Bogle referred me to various authorities which I deal with below. The sheet anchor of his argument that a McKenzie friend is to be granted a right of audience only in 'exceptional' circumstances was the decision of the Court of Appeal in D v S (Rights of Audience) [1997] 1 FLR 724. He sought to distinguish the subsequent decision of the Court of Appeal in Clarkson v Gilbert [2000] 2 FLR 839 (see below). Fundamentally, he submitted, there were here no exceptional circumstances to justify Mr Holden being granted a right of audience. True it is, he said, that the father had been represented by a McKenzie friend, Dr Pelling, in some parts of some previous hearings but he was now represented by counsel for the trial. The issue of such representation is not one of mere mutuality but each application must be made on its merits and determined in accordance with the guidance given by authority. Doubtless Mr Holden would be able to put the mother's case better than she herself, otherwise she would not be asking for him to be her advocate, but that, said Mr Bogle, is plainly not a reason for the court to accede to the application.
Ms Hudson, in a skeleton argument which, like Mr Bogle's, carefully analysed the case-law, made it clear that the guardian supported the mother's application and that the guardian found it “wholly regrettable” that the father should adopt the stance he was in seeking to prevent this. Her submissions can be summarised as follows:
i) First, Mr Holden was understood to be a family friend of the mother as opposed to a quasi-professional litigator. He had indicated that he had only ever sought to assist one other person and that was in a housing matter. (This should be put in context. Dr Pelling in his witness statement deposed – and this was not challenged by anyone – to a conversation he had had with Mr Holden on the occasion of the hearing before Pauffley J in which he (Mr Holden) had...
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