Re O (children) (representation: McKenzie friend); Re W-R (A Child) (representation: McKenzie friend); Re W (children) (representation: McKenzie friend)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date2005
Date2005

Children – Care proceedings – Legal representation of parties – Instruction of McKenzie friend – Disclosure of documents to McKenzie friend – Disclosure to outside bodies.

Three appeals raised important issues of practice in relation to unrepresented litigants in the family justice system.

Held – (1) The purpose of allowing a litigant in person the assistance of a McKenzie friend is to further the interests of justice by achieving a level playing field and ensuring a fair hearing. The court endorses the proposition that the presumption of allowing a litigant in person the assistance of a McKenzie friend is very strong, and that such a request should only be refused for compelling reasons, which a judge should identify and explain fully. The following do not constitute compelling reasons: that the litigant in person appears to be of sufficient intelligence to be able to conduct the case on his own; the fact that the litigant appears to have sufficient mastery of the facts and documentation; the fact that the hearing is a directions or case management appointment; or the fact that the proceedings are confidential. Where a litigant in person wishes to have the assistance of a McKenzie friend in private family law proceedings relating to children, the sooner that intention is made known to the court and the sooner the court’s agreement is obtained, the better, and it is preferable if the same McKenzie friend appears throughout. It is not good practice to exclude the proposed McKenzie friend from the courtroom or chambers whilst the application by the litigant in person for his assistance is being made, as the litigant is likely to need the assistance of such a friend to make the application in the first place. Furthermore, it is helpful for the proposed McKenzie friend to be present so that any concerns about him can be ventilated in his presence, so that the judge fully understands his role and that

the McKenzie friend will abide by the court’s procedural rules. It will always be helpful for the court if the proposed McKenzie friend can produce either a short curriculum vitae or statement about himself, confirming that he has no personal interest in the case, and that he understands both the role of the McKenzie friend and the court’s rules as to confidentiality.

(2) It is difficult to describe a court sanctioned McKenzie friend as ‘the public at large or any section of the public’ for the purposes of s 62(1) of the Children Act 2004, and therefore there is no reason in principle why a litigant in person should not disclose the court papers to his court sanctioned McKenzie friend. At the same time, however, the McKenzie friend must appreciate that disclosure is being made for the purpose of enabling the litigant in person effectively to present his case and thus to ensure a fair hearing. Emphasis needs to be placed not only on the purpose for which disclosure of the information is required, but also the use to which the person receiving the information puts it. The judge should ensure, as a matter of practice, that whenever an application is made by a litigant in person for the assistance of a McKenzie friend, both the litigant in person and the McKenzie friend express their clear understanding of the role of the McKenzie friend and in particular the responsibility which the McKenzie friend has in relation to ensuring the documents are being disclosed to him for the sole purpose of assisting the litigant in person. The court should require an assurance from both the litigant in person and the McKenzie friend that the documents will be used only for the purpose of the proceedings. A formal undertaking is not required, but the McKenzie friend will need to understand that he will remain in contempt if he publishes the disclosed information to the public at large or a section of the public without permission of the court. It should not, however, be considered a contempt of court for a litigant in person to seek advice prior to any application to the court from a proposed McKenzie friend, or to show court documents to the person from whom the advice is being sought, so long as that person appreciates that they are being shown for the purpose of giving advice and that wider dissemination is not permissible. Once the McKenzie friend has been accepted by the court, and appropriate assurance given about the use of documents, orders for disclosure of documents to McKenzie friends should not be necessary.

(3) There is no objection in principle to disclosure of court documents to a public authority with a proper interest in the subject matter of the disclosure. Such a body would not seem to be either ‘the public at large or any section of the public’ and would have a public duty only to use the documents for an appropriate statutory purpose. If a body such as the local government ombudsman takes the view that it had no jurisdiction to investigate the complaint it will no doubt say so, and return the papers.

Cases referred to in judgment

B (a child) (disclosure), Re[2004] EWHC 411 (Fam), [2004] 3 FCR 1, [2004] 2 FLR 142.

Collier v Hicks (1831) 2 B & Ad 663, 109 ER 1290.

Dombo Beheer BV v Netherlands (1993) 18 EHRR 213, ECt HR.

G (a child) (litigants in person), Re[2003] EWCA Civ 1055, [2003] 2 FLR 963.

G (chambers proceedings: McKenzie friend), Re [1999] 1 WLR 1828, [1999] 2 FLR 59, CA.

H (McKenzie friend: pre-trial determination), Re[2001] EWCA Civ 1444, [2002] 1 FLR 39.

H (minors) (chambers proceedings: McKenzie friend), Re[1997] 3 FCR 618, [1997] 2 FLR 423, CA.

M (contact: parental responsibility: McKenzie friend), Re[1999] 1 FCR 703, [1999] 1 FLR 75, CA.

McKenzie v McKenzie [1970] 3 All ER 1034, [1971] P 33, [1970] 3 WLR 472, CA.

R v Bow County Court, ex p Pelling[1999] 1 FCR 97, [1999] 4 All ER 751, [1999] 1 WLR 1807, [1999] 2 FLR 1126, CA.

R v Leicester City Justices, ex p Barrow [1991] 3 All ER 935, [1991] 2 QB 260, [1991] 3 WLR 368, CA.

Yousef v Netherlands[2002] 3 FCR 577, ECt HR.

Appeals

Three appeals by Mr O’Connell, Mr Whelan and Mr Watson raised important issues of practice in relation to unrepresented litigants in the family justice system. The facts are set out in the judgment of the court.

The three appellants appeared in person.

Meena Gill (instructed by Children & Families Law Firm) for W-R.

Duncan Watson (instructed by Hamnett, Osborne and Tisshaw) for W.

Robin Spon-Smith (instructed by CAFCASS legal) as advocate to the court.

WALL LJ.INTRODUCTION

[1] 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 [124]–[138] below.

[2] 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.

[3] In the course of his judgment in Re G (a child) (litigants in person) [2003] EWCA Civ 1055, [2003] 2 FLR 963, Thorpe LJ made a number of comments on the policy aspects of issue (2). At [32]–[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...

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