RE H (McKENZIE FRIEND: PRE-TRIAL DETERMINATION) [2001] EWCA Civ 1444

RE H (McKENZIE FRIEND: PRE-TRIAL DETERMINATION) [2001] EWCA Civ 1444 [2002] 1 FLR 39

Court of Appeal
Thorpe and Keene LJJ
26 September 2001
Procedure – McKenzie friend – Application by father to have assistance of McKenzie friend at contact hearing refused – Whether father entitled to McKenzie friend in circumstances
At a directions hearing setting up a subsequent contested contact hearing, the judge refused the appellant’s application to be assisted in court by Dr P as his McKenzie friend. Fearing that he would be refused Dr P’s assistance at the final hearing on 28 September 2001, the appellant applied on 12 September 2001 for permission to have that assistance. The judge refused the application on the ground that, having listened to and observed Dr P, he felt that, with the appellant on his own, the hearing would be fairer, less adversarial and legalistic, and in the greater interests of justice. The appellant appealed, with permission, to the Court of Appeal, contending that he would feel vulnerable and inadequate were he to conduct the case on his own.
Held – allowing the appeal – the presumption in favour of permitting a McKenzie friend was a strong one. The judge had criticised Dr P for being too adversarial and legalistic, but the argument in the court below had necessarily been an adversarial and legalistic one and, since it was unusual for a respondent to oppose an application for McKenzie assistance, as she had done vehemently in the present case, it was possible that she had contributed to the adversariality. In any event the issues at the substantive hearing would be within the range of fact and good sense, so that the inference that the adversariality and legalism on 12 September 2001 would necessarily be repeated on 28 September 2001 was probably not well founded. Accordingly the court would grant the application for Dr P to assist the appellant at the hearing on 28 September 2001.
Per curiam: the application for permission to appeal to the Court of Appeal was lodged in time but towards the boundary of the 14 days allowed, putting the court under some pressure to adjudicate before the fixture in the county court. It would be helpful if the application for permission to appeal was filed more promptly to give the court a fairer opportunity of setting up an on-notice hearing.
Deborah Toussaint for the respondent
The appellant appeared in person.
THORPE LJ:
[1] This is Mr H’s application for permission to appeal with the appeal to follow if permission granted.
[2] The issue is small and procedural. Manifestly, Mr H has an arguable case and we grant permission. The question that we have to decide is whether His Honour Judge Worsley was right to deny Mr H a McKenzie friend, in the shape of Dr P, for the purposes of a contested contact hearing in the Basildon County Court fixed for the day after tomorrow.
[3] The hearing before His Honour Judge Worsley was preceded by a hearing in front of Her Honour Judge Ludlow in the Chelmsford County Court on 19 July 2001. It was, seemingly, a directions hearing, setting up the substantive hearing for Friday; but on that day Her Honour Judge Ludlow refused Mr H’s application to be assisted in court by Dr P as his McKenzie
[2002] 1 FLR 40
friend. That order was not appealed, so we have not seen her judgment. It may be that she refused Mr H a McKenzie friend on that occasion simply because the issues were simple issues of direction and there was nothing of any great significance in play on that day.
[4] However, seemingly, Mr H was fearful that at the final hearing he would find himself refused Dr P’s assistance and would therefore be exposed to the vital final hearing without aid. Accordingly, he sought a listing of an application to have the assistance of Dr P, and that was afforded to him on 12 September 2001. His Honour Judge Worsley refused his application for Dr P and refused him permission to appeal and refused a stay of the hearing on 28 September 2001. The judge’s reasons for refusing permission were subsequently reduced to writing. He said that his decision was discretionary, based on the facts and family issues in the case, his observation of, and listening to, Mr H and Dr P during the application and his view that with Mr H on his own the hearing would be fairer, less adversarial and legalistic and in the greater interests of justice from all points of view.
[5] The application for permission to appeal to this court was lodged in time, namely on 24 September 2001, but towards the boundary of the 14 days allowed and putting this court under some pressure to adjudicate before the fixture in the county court. So in circumstances such as these, should they recur, it would be helpful if the application to this court for permission to appeal were filed more promptly to give this court a fairer opportunity of setting up an on-notice hearing.
[6] This morning Mr H has appeared, with Dr P at his side, and has really done little more than reiterate his sense of vulnerability at the prospect of this vital hearing the day after tomorrow when he risks to be on his own. He says that he feels inadequate and he finds these hearings make him very nervous.
[7] Miss Toussaint, who represents the respondent in the proceedings, has entered a spirited defence of the judge. She says that this is a discretionary decision, fully reasoned, and the judge was more than justified in refusing the application, given the heated exchanges before him on 12 September 2001, which were prompted, or heavily contributed to, by Dr P.
[8] In fairness to the judge we do not have a transcript of his judgment. All we have is a note taken by Miss Toussaint, which is very far from being a verbatim record. It allows us to see the drift of the judge’s reasoning but not a lot more than that. It certainly confirms that the judge founded himself on his impression of Dr P formed during the course of that hearing.
[9] I only add that when judgment was delivered against Mr H, he then asked whether a Mr Linnecar might sit beside him on 28 September 2001. The note taken by Miss Toussaint then reads only this:

‘I refuse that application.’

[10] So I am left in some doubt as to why the judge seemingly summarily dismissed the alternative and fall-back application, unless perhaps he felt that it was a ploy by Dr P to put some associate or nominee in his place.
[11] Of course I recognise the danger of interfering too readily with discretionary decisions of circuit judges, particularly on procedural matters.
[2002] 1 FLR 41
On the other hand, I have very great anxiety at the outcome produced by the judge’s discretionary conclusion. Having seen and heard Mr H this morning, I readily understand his sense of vulnerability in the face of contested legal proceedings. It is very important in family proceedings that litigants in person ranged up against solicitors and counsel should have the assistance that they think appropriate, particularly if it is going to contribute to their sense of confidence in the proceedings. So whilst I recognise the judge’s right to exclude a particular McKenzie friend for good reason, it seems to me that the presumption in favour of permitting a McKenzie friend is a strong one.
[12] Dr P is well known to this court. He is an active campaigner for father’s rights. He has strong views on the evolution of family law, family policy and family practice. I myself have quite extensive experience of Dr P in this court acting as a McKenzie friend and (although in a sense irrelevant to our conclusion today) I record that I have never seen Dr P act other than in an entirely helpful way both to the person he is assisting and to the court itself. His Honour Judge Worsley, we are told by Miss Toussaint, had no previous experience of Dr P and may or may not have known of his work in urging on politicians and policy-makers changes in our family justice system. He seems to have founded himself entirely on the court experience on the 12 September 2001. He has been critical of Dr P on that occasion for being too adversarial and too legalistic. In the application to this court and in the accompanying skeleton argument, Mr H writes (or perhaps Dr P writes on his behalf):

‘Neither the applicant nor Dr [P] make any apology for conducting the case on 12 September in an adversarial and legalistic manner. That is because the issue WAS an adversarial and legalistic one. The respondent strongly opposed Mr H having a McKenzie Friend and equally strongly Mr H argued for one.’

[13] That seems to me to be a fair point. The issue whether or not Mr H was entitled to a McKenzie assistant was to be decided in accordance with the practice of the court as determined by a series of decisions in this court. The argument in the court below revolved round the application of those decisions to the facts of this case. Necessarily, therefore, it was a legalistic argument.
[14] It is, in my experience, quite unusual for a respondent to oppose an application for McKenzie assistance, and to that extent, therefore, perhaps the respondent herself contributed to adversariality. The question really for the judge was whether that same balance of adversariality and legalistic submission would necessarily characterise the substantive hearing where the issues were all within the range of fact and discretion. Obviously, in deciding whether there should be contact and, if so, how much and, further, what should be its details, all the concentration is on practicality and good sense within a judicial discretion. So it seems to me that the inference that adversariality and legalism on the 12 September 2001 would necessarily be repeated on the 28 September 2001 is not necessarily well founded.
[15] Accordingly, not without some hesitation (because I recognise it is an interference with the discretion of a circuit judge in a procedural field), I would in this instance feel justified in concluding that Mr H should have
[2002] 1 FLR 42
been allowed Dr P as his McKenzie friend on the 28 September 2001. I would accordingly propose to reverse that part of the judge’s order of 12 September 2001 and instead simply substitute for the first paragraph of the order as drawn:

‘The application for Dr [P] to assist Mr H as his McKenzie friend at the hearing on 28 September be granted.’

KEENE LJ:
[16] I agree.
Appeal allowed with costs assessed at nil; we will adjourn to costs judge detailed assessment of costs of appellant, which are payable out of Community Legal Service fund; detailed assessment of the respondent’s costs.

Solicitors: Lillywhite Williams & Co for the respondent
PATRICIA HARGROVE
Barrister

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