Re N (A Child) (McKenzie friends: rights of audience)
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Date | 2008 |
| Year | 2008 |
| Court | Family Division |
Practice – McKenzie friends – Rights of audience – Exceptional circumstances – Mother seeking order allowing her to be represented by McKenzie friend – Whether order should be granted.
In 2001 the child, N, was born. He had been the centre of litigation between the mother and father. Throughout the course of the proceedings the father appeared in person, assisted by a McKenzie friend who, with the permission of the court, had been granted a right of audience. The mother was initially represented by counsel and solicitors, but subsequently applied also that her McKenzie friend be granted a right of audience. The father objected. The guardian supported the mother’s application. The mother contended, inter alia, that she had run out of money to fund legal representation, that her McKenzie friend had been involved in the proceedings to date and that if her application was refused she would be forced to seek an adjournment, further prolonging the drawn out proceedings. The mother also sought to rely on the fact that she had not objected to the father’s reliance on his McKenzie friend. The guardian, inter alia, submitted that the volume and nature of the evidence, the subject matter of the dispute, and the length of hearing all combined to make the case an exceptional one, which would permit the mother to have a McKenzie friend under the Courts and Legal Services Act 1990.
Held – Exceptional circumstances were not a prerequisite for the grant of rights of audience to a McKenzie friend. To infer that such an order could only be granted in exceptional circumstances would be to read restrictive words into a statute that conferred an unfettered discretion. A McKenzie friend did not have a right of audience and the court could exercise its discretion to grant a McKenzie friend a right of audience in accordance with s 27(2)(c) of the 1990 Act ‘only … for good reason’ and in the light of and bearing in mind the ‘general objective’ set out in s 17(1) of the Act and the ‘general principle’ set out in s 17(3). Moreover, the court should be ‘very slow’ to grant a McKenzie friend a right of audience. There was a spectrum of different circumstances which might arise so it was difficult to lay down precise guidelines. The circumstances of each individual case were important. At one end of the spectrum there was the ‘professional’ McKenzie friend who acted also as an advocate. There, as a general
principle, the court would make an order only in exceptional circumstances. At the other end of the spectrum there was the McKenzie friend who was the litigant’s spouse or partner. In between, as was the friend in the instant case, there was a wide range of circumstances which it was futile to classify or categorise. Furthermore, the attendance of a McKenzie friend would often be of advantage to the court in ensuring the litigant in person received a fair hearing. Sometimes it would be essential, if justice was to be done and perceived by the litigant in person as having been done. In all the circumstances of the instant case there was no doubt that the mother had been able to show ‘good reason’ why her McKenzie friend should be granted rights of audience. Accordingly, rights of audience for the mother’s McKenzie friend would be granted; Clarkson v Gilbert[2000] 3 FCR 10, [2000] 2 FLR 839 applied.
Case referred to in judgmentBlunkett v Quinn[2004] EWHC 2816 (Fam), [2005] 1 FCR 103, [2005] 1 FLR 648.
Clarkson v Gilbert[2000] 3 FCR 10, [2000] 2 FLR 839, CA.
Clayton v Clayton[2006] EWCA Civ 878, [2006] 2 FCR 405, [2007] 1 All ER 1197, [2006] Fam 83, [2006] 3 WLR 599, [2007] 1 FLR 11.
D (a child) (representation: McKenzie friend), Re[2005] EWCA Civ 347, [2005] All ER (D) 324 (Mar).
D v S (rights of audience)[1997] 2 FCR 217, [1997] 1 FLR 724, CA.
Kelly v BBC[2000] 3 FCR 509, [2001] 1 All ER 323, [2001] Fam 59, [2001] 2 WLR 253, [2001] 1 FLR 197.
Mensah v Islington London BC (1 December 2000, unreported), Court of Appeal (Civil Division) Transcript No 2384 of 2000, CA.
Milne v Kennedy (1999) Times, 11 February.
O (children) (representation: McKenzie friend), Re[2005] EWCA Civ 759, [2005] 2 FCR 563, [2006] Fam 1, [2005] 3 WLR 1191, [2005] 2 FLR 967.
Paragon Finance plc v Noueiri (Practice Note)[2001] EWCA Civ 1402, [2001] 1 WLR 2357.
Pelling v Bruce-Williams[2004] EWCA Civ 845, [2004] 3 FCR 108, [2004] 3 All ER 875, [2004] Fam 155, [2004] 3 WLR 1178, [2004] 2 FLR 823.
S (a child) (identification: restriction on publication), Re[2004] UKHL 47, [2004] 3 FCR 407, [2004] 4 All ER 683, [2005] 1 AC 593, [2004] 3 WLR 1129, [2005] 1 FLR 591.
Scott (orse Morgan) v Scott [1913] AC 417, [1911–13] All ER Rep 1, HL.
Webster, Re, Norfolk CC v Webster[2006] EWHC 2733 (Fam), [2008] 1 FCR 440, [2007] 1 FLR 1146.
X v Dempster[1999] 3 FCR 757, [1999] 1 FLR 894.
ApplicationAt the final hearing of s 8 (of the Children Act 1989) proceedings the father objected to the mother’s McKenzie friend exercising a right of audience. The facts are set out in the judgment.
James Bogle (instructed by Bance Commercial Law) for A (the father) in the s 8 proceedings.
Dr Michael Pelling (of Bance Commercial Law) for A in the Sch 1 proceedings.
Kate Hudson (instructed by Goodman Ray) for N (the child).
The mother appeared in person assisted by her McKenzie friend David Holden.
MUNBY J.[1] I have before me an interesting point in relation to McKenzie friends’ rights of audience.
The background[2] 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 Pt IV of the Family Law Act 1996, proceedings under s 8 of the Children Act 1989 (the s 8 proceedings) and proceedings under s 15 of and Sch 1 to the 1989 Act (the Sch 1 proceedings). I have dealt with the Sch 1 proceedings for some time; more recently I have also assumed responsibility for the s 8 proceedings.
[3] Throughout the time I have been dealing with the Sch 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 Sch 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.
[4] The final hearing of the s 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, ‘[i]t 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[5] As I have said, the final hearing of the s 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 s 8 proceedings and has a r 9.5 guardian acting for him, was represented by Ms Kate Hudson of counsel.
[6] 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 FCR 90, [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] 2 FCR 217, [1997] 1 FLR 724, that there were in any event no exceptional circumstances to justify Mr Holden being permitted to act in this way.
[7] 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 s 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...
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