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O, Re (Children) and Others [2005] EWCA Civ 759

Clarification regarding assistance by McKenzie friends in private family law proceedings.

Re O (Children) and Others [2005] EWCA Civ 759

Court of Appeal: Thorpe and Wall LJJ (22 June 2005)

Summary
Clarification regarding assistance by McKenzie friends in private family law proceedings.

Background
This case concerned three separate appeals, heard together, relating to the assistance of a litigant in person by a McKenzie friend in private family law proceedings: in two of the cases, the judge had refused to allow the help of a McKenzie friend; in the third, the judge had permitted the assistance of a McKenzie friend but severely limited the disclosure of documents that the party was allowed to make.

The court took this opportunity to settle the practice of the family courts, in view of considerable divergence in the attitudes of judges at first instance to the use of McKenzie friends in family proceedings, and taking into account case-law and statutory developments since the term was first used in 1970 following the case of McKenzie v McKenzie [1971] P 33. A notable recent development was the enactment of section 62 of the Children Act 2004 which, to a certain extent, relaxes the prohibitions on publication of information relating to private proceedings contained in section 12 of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989.

Judgment
Held, allowing all three appeals, that the judges had been plainly wrong in their decisions. The court, endorsing the Guidance issued by the Office of the President of the Family Division relating to McKenzie Friends on 13 May 2005, highlighted the following points:

(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 presumption in favour of allowing a litigant in person the assistance of a McKenzie friend is very strong, and such a request should only be refused for compelling reasons; furthermore, any judge identifying such reasons must explain them carefully and fully to both the litigant in person and the would-be McKenzie friend.

(2) 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 for the use of the particular McKenzie friend is obtained, the better.

(3) It is helpful for the proposed McKenzie friend to be present when the application for his assistance is made, so that the judge can be satisfied that the McKenzie friend fully understands his role and, in particular, the fact that disclosure of confidential court documents is made to him for the purposes of the proceedings only.

(4) In any decision to refuse the assistance of a McKenzie friend, the following do not, of themselves, constitute compelling reasons: (i) the litigant in person appears to the judge to be of sufficient intelligence to be able to conduct the case on his own without the assistance of a McKenzie friend; (ii) the litigant appears to the judge to have a sufficient mastery of the facts of the case and of the documentation to enable him to conduct the case on his own without the assistance of a McKenzie friend, (iii) the hearing at which the litigant in person seeks the assistance of a McKenzie friend is a directions appointment or a case management appointment, or (iv) subject to certain caveats, the proceedings are confidential and the court papers contain sensitive information relating to the family's affairs.

In addition, the court considered that the disclosure of documents to a McKenzie friend did not require the court's permission: Children Act 2004, s 62 had not fundamentally altered the law, and the court should require an assurance from both the litigant in person and the McKenzie friend that the documents would be used only for the purpose of the proceedings and to enable the litigant in person to obtain advice about how to conduct his case; a formal undertaking was not required. The McKenzie friend must understand that it remains a contempt if he publishes information to 'the public at large or any section of the public' without the permission of the court.

Read the full text of the judgment here