D (A Child), Re

LORD JUSTICE THORPE: Mrs Francis, the applicant for permission today, seeks an exceptional grant, namely rights of audience to her Mackenzie Friend, who is also her partner, Mr Ty Francis. He, it is not in dispute, is a solicitor who has been struck from the Rolls by the Solicitors Disciplinary Tribunal.

The first point that Mrs Francis makes, which has some validity, is that when she appeared before the court on 4 November 2004 Black J exercised her discretion to allow Mr Ty Francis to speak on her behalf. However, as she has conceded, no objection was taken on that occasion by anyone since of course on that occasion she was appearing without attendance from the respondent. Her former husband, no doubt anticipating a renewed application, has written to the court stating his objections, and he includes the fact that he, too, is a litigant in person and that he regards his former wife as being just as competent as he is, since she has for a number of years been employed by firms of solicitors as a legal secretary.

It seems to me that it is important for this court to maintain fairness and parity, particular where both parties appear in person. Furthermore, the guidance from the President's office as to the role of the Mackenzie Friend, although specifically written for judges of the Family Division, is a useful guide to this court insofar as it records the statutory provisions governing the rights of audience, namely sections 27 and 28 of the Courts and Legal Services Act 1990. Those sections do provide the court with a discretionary power to grant individuals rights of audience, but subject to very stringent restriction. A court may only grant such a right in exceptional circumstances and after careful consideration.

The point that Mr Ty Francis was allowed to speak on the last occasion is well answered by the fact that it was an application without notice and no objection was taken. Entirely different considerations apply at an on notice hearing where objection is taken. Thus Mrs Francis is reduced to the point that she believes that Mr Ty Francis would be able to put her case better than she can. I do not think there can be much doubt of that because he is an experienced lawyer and one who had advocacy skills as well. But the circumstances in which he finds himself professionally militates strongly against the application. I am in no doubt at all that, as a matter of principle and as a matter of fairness, the application should be refused.

LORD JUSTICE HOOPER: I agree.