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Re H (Children) [2012] EWCA Civ 1797

Appeal by father in private law children proceedings against the decision to discharge his McKenzie friend. Appeal dismissed. Consideration given to the guidance concerning the involvement of McKenzie friends.

Case Nos: B4/2012/3026

Neutral Citation Number: [2012] EWCA Civ 1797

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 20th  June 2012


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(DAR Transcript of
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The Applicant Father appeared in person, assisted by a McKenzie friend

The First Respondent Mother was not represented.

Mr Guy Swiffen QC (instructed by Grahame Stowe Bateson) appeared on behalf of the Second and Third Respondent Children through their Guardian.

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Sir Nicholas Wall:
1. In these proceedings, the father of two girls, now aged 12 and 9 years 5 months, seeks to challenge what is in essence a case management order made by HHJ Annabel Carr QC as long ago as 2 November 2011.  This afternoon, we have heard the father in person, assisted by his McKenzie friend, with whom the judge dispensed.  The mother has not appeared and the children have been separately represented by counsel.

2. We understand that there are a very substantial number of issues in this case and we quite understand the feeling behind the appellant's submission.  He takes a view that effectively one of his children, his elder child, has been "brainwashed" by her mother, that the children have been alienated from him and that he has had quite an uphill battle even to gain contact, which has been unsuccessful in terms of time.  We understand all of that, but at the same time, as Sullivan LJ pointed out during the course of argument, we are dealing with what is in essence a case management decision by the judge on 2 November 2011 and nothing else.

3. By paragraph 1 of her order, the judge rejected the father's application that a named individual, who was his McKenzie friend in the proceedings at that time, should be granted rights of audience and allowed to conduct the proceedings on his behalf, and she went on to exclude him from acting as McKenzie friend at future hearings.  By paragraph 2 of her order, the judge fixed a time and date for the hearing of the father's application for residence and/or contact.  At paragraph 3 she identified the witnesses who were to give evidence at the final hearing, for which she legislated.  By paragraph 4 she directed that no further witnesses were to be called to give evidence in the final hearing "without the leave of the court".  By paragraph 5 she directed the mother to file and serve a statement by her husband dealing with the issues of residence "and the arrangements for the care of the children" by a given date.  By paragraph 6 she directed that no further statements were to be filed, again "without the leave of the court."  Finally, by paragraph 7 she made provision for the children's solicitor to prepare and submit an index of the bundle for the final hearing.

4. On 2 April Ward LJ, at an oral hearing, gave the father permission to appeal against paragraph 1 of the order.  He dismissed the application so far as it related to paragraph 2, and so far as paragraphs 4 and 6 were concerned, the applications in relation to the witnesses, he directed that they should be adjourned to be heard on notice to the mother and to the guardian of the children.

5. This is, as we understand it, the first time that the guidance, McKenzie Friends (Civil and Family Courts) Practice Guidance [2010] 2 FLR 962, has reached this court.  The appellant father is very critical of the judge, saying that, although she referred to it, she had not familiarised herself with it and was not familiar with it.  But, for reasons which follow, I am of the clear view that, notwithstanding the fact that the father is a self-representing litigant, it would be premature to offer any views on the guidance.

6. But what is clear is that Ward LJ took the course he did "with great misgivings".  He said that was because the court should not be interfering with case management decisions by a trial judge.  I tend to that view myself.  However, that does not mean that case management decision appeals are always unnecessary, nor does it mean that such an appeal will inevitably fail (see for example Re: P and P (Care Proceedings: Appointment of Experts) [2009] EWCA Civ 610, [2009] 2 FLR 1370).   What it does mean, in my judgment, is that it is essential that, if for any good reason an appeal is to be mounted against a case management decision, it must be mounted swiftly, and on several occasions this court has made just that point (see Re: P and P itself; see also Re: S (Child Proceedings: Urgent Appeals) [2007] EWCA Civ 958 and Re: A (Residence Order) [2007] EWCA Civ 899).

7. The result in the instant case, particularly given the appellant father's feelings, is particularly unfortunate.  One of the consequences of the appeal is that the hearing date which was fixed for 12 January 2012 has been vacated, with the result that proceedings which were commenced by the father, as long ago I think as June 2010, remain unresolved some two years later.  As we pointed out several times to the appellant father during the course of argument, if he remains dissatisfied with the judge's handling of the case, material which has come to him since the hearing before the judge can be put to her once again.  She has not shut it out.  She has said it is not to be adduced without the leave of the court, and if there is good reason for material to be placed before her, it should be so placed.

8. I also fear that a case such as the present one is going to cause enormous difficulties for judges in the future and after April 2013, as Mr Swiffen pointed out, it is unlikely there will be any legal representation of any kind in a case such as this, and the court will be faced with difficult issues between parties who are self-represented litigants but who feel very strongly about where they are.  The appellant father has made it abundantly clear this afternoon that his position is one of some distress.  Not only has time passed and his children have been alienated from him, but he feels that he is facing an uphill struggle in every aspect of the case.  So whereas here the parties have been unable to resolve their difference by mediation or ADR, there is going to be a plethora of cases such as the present.  I notice there is a great deal of work on foot to try and ease the position of people in the appellant father's position, and it is one of the reasons why I do not think it is appropriate at this stage for the court to make any observations about the form of the guidance or the help which will be available to self-represented litigants.

9. I turn therefore to the appeal in this case.  I remain of the view that this was a case management decision by the judge, who was plainly exercising a judicial discretion.  The court will only interfere in these circumstances if the order made by the judge was plainly wrong (see the decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] 1 WLR 647).  I accept, however, a judge can be wrong for different reasons.  She could make an error of law or she could exercise her discretion in a way which is inappropriate, and therefore one looks at the facts underlying the instant case.  It must be said, however – and I said this to the appellant father during the course of argument – that a judge does have a very broad discretion over the evidence to be called or indeed whether or not oral evidence is called at all (see amongst others the judgment of Butler-Sloss LJ in Re B (A Minor) [1992] 2 FLR 1). 

10. People in the appellant father's position frequently take the view that "character" witnesses are of particular importance in Children Act cases.  In fact, often the reverse is the case.  A witness who knows one of the parties, even if he or she has seen the party in question with the children, is rarely any help to a judge deciding what is in the best interests of the child or children concerned in the particular facts of the case.  The reasons for this are threefold.  Irrespective of the quality of the witness, often the witness is partisan in favour of one party rather than the other.  Secondly, what matters of course is the judge's assessment.  And thirdly, what also matters is that the witness can rarely give direct evidence about the issues which the judge has to decide.

11. In these circumstances, it seems to me that the application for permission to appeal paragraphs 4 and 6 of the judge's order is quite hopeless.  The judge, as my Lord pointed out, has not finally shut the door.  She has said in each case "without the leave of the court".  The result is that, if at the final hearing it becomes necessary for any reason for the judge to hear a particular witness, that witness can be called.  Much of the submissions made by the appellant father this afternoon related to evidence which had come to his attention since the hearing before the judge with which we are concerned, and therefore those matters remain still at large.  Quite who will give evidence in the dispute, however, must be a matter for the trial judge hearing the case and the court will not interfere unless there is some very good reason to do so.  I can see absolutely no reason to disturb what the judge has directed in those two paragraphs.  In consequence, I would refuse permission to appeal against those two paragraphs, 4 and 6.

12. I go back, therefore, to the nub of this case, which is paragraph 1 of the judge's order.  The matter seems first to have come before her on 11 October.  On that occasion, she adjourned to the hearing on 2 November because she had not had time to read the papers or master the case.  That, she had plainly done by 2 November when she conducted the hearing and gave a judgment, for both of which we have the transcripts.  During the course of the hearing, the judge heard oral evidence from the father.  She also heard directly from the father's McKenzie friend.  She heard from the mother, although the mother was not cross-examined, and from the children's representative. 

13. The following matters seem to me to emerge from the hearing and from the short judgment that she gave.  Firstly, she was anxious, as she put it, to achieve equality of arms.  Although she discharged the father's McKenzie friend, she made it clear that she was not opposed to McKenzie friends in general.  Thus, in fixing a hearing date, she ensured there was ample time for the father to obtain the services of another such McKenzie friend.  She also made it clear that she had allowed this particular McKenzie friend to act on a previous occasion.  It cannot, therefore, be said that the judge was prejudiced against the McKenzie friend.

14. She found it more likely than not that the mother had been intimidated by the father's McKenzie friend.  That is a difficult finding to sustain on the evidence because the mother was not cross-examined, but the judge, who had a very short hearing, took a snapshot view of that matter.  She had adjourned the case on a previous occasion in order, as I said, to ensure that she could familiarise herself with the papers and she heard a number of submissions from the solicitor acting for the children, including evidence that the father's McKenzie friend had overstepped the mark and prepared a document in the case template which referred to the name of a child who was nothing to do with the proceedings, even though the father asserted that 80 percent of the work had been done by him.

15. The judge concluded her short judgment with these words:

"5. I am concerned about the fact that there is a crossing over it seems to me here of a McKenzie Friend into the realms of conducting litigation.  So far as I am concerned, the documentation does cross the line, and even if it is only twenty per cent it is twenty per cent too much.  I do not accept the explanation for Joshua [that is the name that was included in the father's application].  I am not going to permit [the McKenzie friend] to be a McKenzie friend, as I am invited to do so, not only by the mother but also by Mr Philips on behalf of the children.  I also think it is highly likely that she was intimidated in the manner she has described and of course given that the hearing is in January 2012, Mr [H] has plenty of time to appoint another McKenzie friend.  If required to do so, I am happy to give further reasons, but this case is only allocated 30 minutes in what is a very busy list."

Even if one takes away the finding of fact that the mother was intimidated from that hearing, there seems to me to be adequate reasons for the judge to have acted as she did.  She also read the curriculum vitae of the father's McKenzie friend and referred to the guidance.

16. For myself, I have come to the clear view that this was a case management decision by the judge exercising her judicial discretion, albeit in a swift and it must be said somewhat rough and ready way; nonetheless it is in a way with which this court should not interfere.  It needs to be said that the reasons that she gave are perfunctory but, in my judgment, reasons do not have to be elaborate if they are stated briefly and shortly and the fact that the judge was sufficiently straightforward to say that she could give fuller reasons if she wanted to, given a longer period of time, does not mean that the reasons she did give were in any way inadequate.  If they had been inadequate, it may be that I would have expected certainly that she would have been asked to elaborate upon them, but she was not.  This is a case management decision which in my view the judge was entitled to make and I would therefore dismiss the appeal.

17. It is worthwhile pointing out, however, in view of the submissions made to us this afternoon by the appellant father that the judge did refer to the guidance, reported at [2010] 2 FLR 962, which makes it very clear what McKenzie friends may not do:

"4) MFs may not i) act as the litigants' agent in relation to the proceedings; ii) manage litigants' cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses."

The following paragraphs of the guidance also set out the duties of a McKenzie friend and what a McKenzie friend cannot do:

"Rights of audience and rights to conduct litigation
18) MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis.

19) Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF. This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.

20) Any application for a right of audience or a right to conduct litigation to be granted to any lay person should therefore be considered very carefully. The court should only be prepared to grant such rights where there is good reason to do so taking into account all the circumstances of the case, which are likely to vary greatly. Such grants should not be extended to lay persons automatically or without due consideration. They should not be granted for mere convenience."

18. In those circumstances, on the findings which the judge made, my clear view is that she was entitled to do what she did.  I would therefore refuse permission to appeal paragraphs 4 and 6 and I would dismiss the appeal in relation to paragraph 1.

Lady Justice Arden:
19. I would make the same order for the reasons which the President has given.

Lord Justice Sullivan:
20. I agree.

Order:  Application refused; appeal dismissed.