Re O (Children) (Hearing in Private: Assistance)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 22 June 2005 |
| Neutral Citation | [2005] EWCA Civ 759 |
| Docket Number | Case No: B4/2004/2341&2693, B4/2005/0341 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 2005 |
[2005] EWCA Civ 759
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM SOUTHAMPTON COUNTY COURT
HIS HONOUR JUDGE MILLIGAN
96D1059
(2) ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
FD03P02777
HIS HONOUR JUDGE COOK
(3) ON APPEAL FROM THE BRIGHTON COUNTY COURT
HER HONOUR JUDGE NORRIE
HM02P00233
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe and
Lord Justice Wall
Case No: B4/2004/2341&2693, B4/2005/0341
The three Appellants Appeared in Person
Meena Gill ( instructed by Children & Families Law Firm—Solicitors) for W-R Respondent
Duncan Watson ( instructed by Hamnett, Osborne and Tisshaw—Solicitors) for W Respondent
Robin Spon-Smith (instructed by CAFCASS legal) – Advocate to the Court
Introduction
This is the judgment of the court. As it relates in part to the Guidance issued by the Office of the President of the Family Division relating to McKenzie Friends, reported at [2005] 35 Fam. Law 405, we have taken the opportunity to show it in draft to the President, who has authorised us to say that in so far as it amplifies that guidance, he is in full agreement with it, and in particular with paragraphs 124 to 138 below.
These three appeals raise two important issues of practice in relation to unrepresented litigants in the family justice system. The two issues are: (1) the circumstances in which such litigants may invoke the assistance of what have become known as "McKenzie friends" in family proceedings held in private; and (2) the extent to which (if at all) it is necessary for an unrepresented litigant to seek the permission of the court to disclose confidential documents and information generated by the court process both to a McKenzie friend and to other third parties.
In the course of his judgment in Re G (Litigants in Person) (hereafter Re G) [2003] EWCA 1055, [2003] 2 FLR 963, Thorpe LJ made a number of comments on the policy aspects of issue (2). In paragraphs 32 to 37 he said: —
[32] This appeal has focused attention on the shortcomings of FPR 1991 r 4.23. Rule 4.23(1)(b) grants a general dispensation for disclosure of court papers to the legal representative of a party. That provision may be said to discriminate against the unrepresented litigant. These rules were formulated by the Family Proceedings Rules Committee approximately 13 years ago. Since that date there has been a significant increase in the percentage of family cases in which one or other of the parties is unrepresented for all or part of the proceedings. There are no statistics to substantiate that assertion but it is universally recognised as the reality by all specialists in this field. The provision of legal aid in family proceedings is a shrinking rather than an expanding welfare service. In recent years support services for litigants in person have made an increasingly valuable contribution to the performance of the family justice system in the courts of trial and in the Court of Appeal. Arguably a litigant in person seeking the help of the RCJ Advice Bureau or the personal support unit at the Royal Courts of Justice should not be obliged to apply for the permission of a judge or a district judge before disclosing the case papers to a case worker.
[33] The President, in the course of her judgment in Re G (Contempt: Committal) [2003] EWCA Civ 489, [2003] 2 FLR 58, endorsed the views of Hale LJ in granting permission to appeal when she said of the role of Families Need Fathers in that case:
'Again, I have to say, having read many of the communications in question, a great deal of very helpful advice and sound wisdom was provided to the father as a result of his communications in that discussion.'
Again I pose the question, does the litigant in person have to seek the permission of a judge or a district judge before taking his case to Families Need Fathers?
[34] Further the litigant in person may wish to enlist the help of a McKenzie friend in presenting an impending or prospective case to the court. In many cases McKenzie friends provide a valuable service not only to the litigant in person but also to the court in reducing the litigant's understandable feelings of anxiety and confusion when confronted by the court in session. In many instances the McKenzie friend will assist the litigant in person to identify the relevant issues and to abbreviate the overall presentation. Must a litigant in person seek the permission of a judge or district judge before disclosing the case papers to his McKenzie friend?
[35] Further a litigant in person may wish to seek advice from a registered parenting charity not in relation to the presentation of the continuing case but in relation to issues thrown up by the case, such as relationship problems or the reduction of barriers that the litigation has created. If such an approach requires the disclosure of court papers should that be the subject of an application for prior permission?
[36] Finally, I instance the litigant in person who wishes to approach a mediation service. Must he seek the permission of a judge before taking the case papers to a preliminary meeting?
[37] In posing these questions I intend only to raise the policy issue. Obviously the attraction of a judicial filter is the maintenance of judicial control and the reduction of abuse that might flow from a liberal extension of the exceptions specified in sub-paras (a)–(e). On the other hand, some of the instances which I have given above might be made the subject of specific exception without much if any foreseeable risk of abuse. Given that further amendments to the Family Proceedings Rules 1991 are planned for the autumn of this year I would invite the Rules Committee to consider the modernisation of r 4.23 by extension of those to whom disclosure can be made without prior judicial permission.
The policy issues which Thorpe LJ identified in this extract from Re G now fall to be addressed directly in the third of these three appeals, which we will designate Mr. Whelan's case, and in which the judge permitted the appellant the assistance of a McKenzie friend, but severely limited the disclosure of documents which Mr. Whelan was allowed to make to his McKenzie friend. The circumstances in which a litigant in person may seek the assistance of a McKenzie friend arise directly in the first two cases (those of Mr. O'Connell and Mr. Watson) in both of which circuit judges refused to allow the two litigants in person the help of a McKenzie friend.
The issues raised by these three cases have an obvious practical relevance to the work of the family courts. The trends identified by Thorpe LJ in paragraph 32 of his judgment in Re G have both continued and intensified. In this court, for example, between the end of 2003 and the end of 2004, the number of applications for permission to appeal in private law proceedings under the Children Act 1989 made by litigants in person almost doubled from 77 to 147. This in turn has led to an undoubted growth in the number of cases in which the litigant in person has invoked the assistance of a McKenzie friend.
Our independent experience of hearing such applications (which are normally heard by a single Lord Justice) has brought to light what appears to be a considerable divergence in the attitudes of judges at first instance to the use of McKenzie friends in family proceedings. Whilst some judges welcome their assistance as a means of facilitating a calm and coherent case presentation by an otherwise angry or anxious litigant, others refuse to allow their use at all. Between these extremes, there appears to be a variety of apparently inconsistent judicial approaches to the question.
It is furthermore plain to us that, in family proceedings, both the concept of the McKenzie friend itself, and the role he or she can properly play in the proceedings have themselves undergone a process of evolution and change since the term McKenzie friend was first used in 1970 following the appeal to this court in the defended divorce case of McKenzie v McKenzie [1971] P. 33. It is also apparent to us that judicial dicta in some of the early, pre-Children Act cases dealing with McKenzie friends do not always seem apt a generation or so later.
A further important development has been the recent enactment of section 62 of the Children Act 2004 (the 2004 Act), which, to a certain extent, relaxes the prohibitions on the publication of information relating to proceedings in private contained in section 12 of the Administration of Justice Act 1960 (AJA 1960) and section 97(2) of the Children Act 1989 (CA 1989).
It was for all these reasons, and with a view to settling the practice of the family courts in relation to McKenzie friends, that we heard these three cases together. In each, the litigant in person was a father engaged in private law proceedings for residence and contact under CA 1989 section 8 against the children's mother. Of the two appellants who had been refused the assistance of a McKenzie friend, the first, Mr. O'Connell, had been granted permission to appeal by Ward LJ at an oral hearing. The second, Mr. Watson, renewed his application for permission to appeal before us. The third, Mr. Whelan, had been refused permission to appeal against the limited nature of the order permitting disclosure. He accordingly renewed his application for permission before us.
Each appellant was accompanied in this court by his McKenzie friend Each appellant argued his case courteously, calmly and persuasively. In Mr. Watson's and Mr. Whelan's cases we granted permission to appeal....
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