(In Public)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sent to the parties on 6 August 2008
Handed down in public on 20 August 2008
Before :
MR JUSTICE MUNBY
In the matter of N (A Child)
In the matter of section 8 of the Children Act 1989
Between :
A | Applicant |
- and - | |
(1) G (2) N (by his Rule 9.5 guardian) | Respondents |
In the matter of N (A Child)
In the matter of section 15 of and Schedule 1 to the Children Act 1989
Between :
G | Applicant |
- and - | |
A | Respondent |
Mr James Bogle (instructed byBance Commercial Law) for A (the father) in the section 8 proceedings
Dr Michael Pelling (of Bance Commercial Law) for A in the Schedule 1 proceedings
Ms Kate Hudson (instructed by Goodman Ray) for N (the child)
G (the mother) appeared in person assisted by her McKenzie friend Mr David Holden
Hearing date: 21-25, 29 July 2008
Judgment
This judgment is being handed down in public and may accordingly be published in this form without any restrictions.
But all persons are reminded that any further reporting of the proceedings to which it relates is or may be regulated by section 12 of the Administration of Justice Act 1960 and section 97 of the Children Act 1989.
Mr Justice Munby :
I have before me an interesting point in relation to McKenzie friends’ rights of audience.
The background
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 Part IV of the Family Law Act 1996, proceedings under section 8 of the Children Act 1989 (the section 8 proceedings) and proceedings under section 15 of and Schedule 1 to the 1989 Act (the Schedule 1 proceedings). I have dealt with the Schedule 1 proceedings for some time; more recently I have also assumed responsibility for the section 8 proceedings.
Throughout the time I have been dealing with the Schedule 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 Schedule 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.
The final hearing of the section 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, “It 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
As I have said, the final hearing of the section 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 section 8 proceedings and has a Rule 9.5 guardian acting for him, was represented by Ms Kate Hudson of counsel.
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 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] 1 FLR 724, that there were in any event no exceptional circumstances to justify Mr Holden being permitted to act in this way.
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 section 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 mother setting out why, as she submitted, I should permit Mr Holden to represent her and make representations on her behalf, a skeleton argument from Mr Bogle and a skeleton argument from Ms Hudson.
The hearing – the parties’ written submissions
In her witness statement the mother essentially made five points:
First, that she had been represented by solicitors until she “simply ran out of money and could no longer afford them.” The costs, she said, had been horrendous.
Secondly, that she was unable to speak articulately, was very clearly emotionally involved, and would have great difficulty in properly presenting her case, which would include the cross-examination of witnesses including the father.
Thirdly, that Mr Holden, a businessman and family friend, had for the past few months been assisting her, communicating with the guardian and her (the guardian’s) solicitors, as well as appearing before Pauffley J and making oral representations on her behalf. He had, she said, been very helpful throughout.
Fourthly, that the father had had the benefit of a McKenzie friend, Dr Pelling, throughout most of the proceedings and “I have never challenged this. Indeed, I would have thought that the same courtesy would have been given to me.” She said that, as the father had been represented by Dr Pelling, it never occurred to her that any objection would be raised to her instructing a McKenzie friend, adding that the father had known since April 2008 that she no longer had solicitors on the record.
Fifthly, that if I was not prepared to allow her application she would be left with no alternative but to ask for an adjournment, so that she could instruct new solicitors. That, as she pointed out, would mean the matter being stood over for a considerable period, something which, in her opinion, would be disastrous for N who, as he had told his guardian, wants “the trouble” to end. She concluded, “This matter has been going on for over 5 years. It must therefore follow that the circumstances are exceptional, for the sake of N.”
Mr Bogle referred me to various authorities which I deal with below. The sheet anchor of his argument that a McKenzie friend is to be granted a right of audience only in ‘exceptional’ circumstances was the decision of the Court of Appeal in D v S (Rights of Audience) [1997] 1 FLR 724. He sought to distinguish the subsequent decision of the Court of Appeal in Clarkson v Gilbert [2000] 2 FLR 839 (see below). Fundamentally, he submitted, there were here no exceptional circumstances to justify Mr Holden being granted a right of audience. True it is, he said, that the father had been represented by a McKenzie friend, Dr Pelling, in some parts of some previous hearings but he was now represented by counsel for the trial. The issue of such representation is not one of mere mutuality but each application must be made on its merits and determined in accordance with the guidance given by authority. Doubtless Mr Holden would be able to put the mother’s case better than she herself, otherwise she would not be asking for him to be her advocate, but that, said Mr Bogle, is plainly not a reason for the court to accede to the application.
Ms Hudson, in a skeleton argument which, like Mr Bogle’s, carefully analysed the case-law, made it clear that the guardian supported the mother’s application and that the guardian found it “wholly regrettable” that the father should adopt the stance he was in seeking to prevent this. Her submissions can be summarised as follows:
First, Mr Holden was understood to be a family friend of the mother as opposed to a quasi-professional litigator. He had indicated that he had only ever sought to assist one other person and that was in a housing matter. (This should be put in context. Dr Pelling in his witness statement deposed – and this was not challenged by anyone – to a conversation he had had with Mr Holden on the occasion of the hearing before Pauffley J in which he (Mr Holden) had told Dr Pelling that he had acted in the courts as an advocate on a number of occasions and for example had represented companies. So be it, but as Dr Pelling is no doubt very well aware, for as he told me he has had personal experience as company secretary of conducting litigation for a company, the representation of companies raises very different issues which are regulated by CPR Part 39.6.)
It was likely that Mr Holden would enable the proceedings to proceed far more smoothly and expeditiously than would otherwise be the case.
Irrespective of whether it is in fact a necessary component of the application or not, the guardian believed that the circumstances prevailing were indeed exceptional and that the mother had a demonstrable need to have an advocate. In particular the guardian relied upon the following matters:
The proceedings were highly charged, acrimonious and emotionally fraught. It is fortunately exceptional to have private law proceedings where (as here) the hearing is listed for 5 days before a High Court Judge with 6 lever arch files worth of evidence. The nature of the parties’ relationship, the volume and nature of the evidence, the subject matter of the dispute and the length of hearing all combined to make this an exceptional case.
The father had in his evidence made frequent attacks on the mother’s educational ability and her mental stability. Whilst the guardian did not believe that these criticisms were wholly justified, it certainly sat uncomfortably with the father’s case for him to make such allegations in his written evidence and then suggest that the mother’s position was not sufficiently exceptional to allow her to have an advocate.
The costs of the litigation would be significant. The mother no longer had the means to pay for legal representation. She would be severely compromised if she was now stripped of her advocate.
The father had regularly been assisted in the litigation by Dr Pelling. The guardian’s solicitors had done everything in their power to accommodate Dr Pelling in terms of sending him documents and generally dealing with him. It was not understood that either the mother or the guardian had ever sought to restrict Dr Pelling’s role in the litigation (although it was accepted that clearly it was for the court to determine not for the parties to agree). The father had been aware for some time that the mother had dispensed with the services of her solicitors. She appeared before Pauffley J in April 2008 and was assisted by Mr Holden, who was given permission to act as her advocate on that occasion. No indication had been given by the father prior to the case actually starting in court on 21 July 2008 that objection was to be taken to Mr Holden acting in a way in which Dr Pelling had so frequently acted in these proceedings before. The mother was entitled to assume that she would be afforded the same courtesy and opportunity that had been given to the father. If the mother were now to be refused permission to have Mr Holden act as her advocate she believed that her position would be so severely compromised as to be untenable and had indicated that she would in those circumstances be forced to apply for an adjournment of the proceedings so that she could arrange some other representation.
For good measure Ms Hudson added that the guardian – an extremely experienced guardian I might add – was extremely disappointed and disturbed by the father’s position in respect of the mother’s representation. Far from demonstrating a willingness to work with the mother to resolve issues, the father had in this respect taken a position which can only have been anticipated as upsetting the mother and making negotiations more difficult. Moreover, significant time had been taken up and significant costs expended in dealing with the point. Although the guardian was publicly funded, the question of costs, said Ms Hudson, might have to be considered in due course.
The hearing – the events of 24 July 2008
Thus the position of the parties on 22 July 2008. There was still no need for me to rule on the matter because the parties were continuing to negotiate productively, as they continued to do on 23 July 2008 and indeed for the rest of the week.
On 24 July 2008 there were two developments. The father’s solicitors, Bance Commercial Law, gave notice of acting in the Schedule 1 proceedings, “but limited purely to directions matters to be dealt with by the court at the conclusion or in the course of” the section 8 proceedings. And the mother wished to raise before me – this while the negotiations were still going on out of court – a point in respect of the relationship between the section 8 proceedings and the Schedule 1 proceedings on which she wished Mr Holden to address me on her behalf. It therefore became necessary for me to rule as to whether, albeit only for this limited purpose, Mr Holden should be granted a right of audience.
Since he was instructed only in the section 8 proceedings and the issue which the mother wished to canvass related in part to the Schedule 1 proceedings, Mr Bogle indicated that oral submissions in relation to Mr Holden’s proper role would be made by Dr Pelling. But this, as I pointed out, gave rise to a difficulty, for Mr Bogle’s skeleton argument (which I understood Dr Pelling wished to adopt) had concluded with the submission that, because the mother’s application raised important questions of principle and fairness in relation to rights of audience, and because the hearing of the application and judgment thereon would not appear to require any reference to the circumstances or private life of the child the subject of the section 8 proceedings, the hearing should be in open court with public pronouncement of judgment in accordance with the common law principle of open justice (reference being made to Scott v Scott [1913] AC 417) and in accordance with Article 6(1) of the Convention.
The difficulty, of course, was that although Dr Pelling, as a solicitor’s clerk, had a right of audience before me in chambers, he had (as he agreed) no higher courts right of audience and therefore no right of audience before me in open court. And given the objection he wished to take on behalf of the father to Mr Holden being granted a right of audience for the purpose of the proceedings, it would scarcely have lain in either his or his client’s mouth to assert a similar right of audience on his own part. So although Dr Pelling would be at liberty to address me in chambers in support of the preliminary argument that the substantive hearing be in open court, were he to be successful in that argument (which I was inclined to think he would be) and were I accordingly to go into open court for the substantive argument (which was likely), he would not be able to address me. Thus, unless Mr Bogle were to be instructed in the matter, any oral arguments which the father might wish to put before me he would have to make himself.
Faced with this difficulty, high-minded principle soon gave way to practical pragmatism. Dr Pelling indicated that the father now wished me to deal with the matter in chambers, so long as judgment was delivered in public. In the circumstances I was prepared to agree to this course.
Having thus disposed of the preliminary question of whether the matter should be dealt with in open court or in chambers, I then proceeded to hear the substantive arguments in chambers. I was addressed briefly by Dr Pelling (in his guise as a solicitor’s clerk), by the mother and, on behalf of the child, by Ms Hudson. I ruled that, for reasons I would give in due course, I was prepared to grant Mr Holden a right of audience in relation to the particular issue which the mother wished him to argue. I then heard Mr Holden on that point and, having made certain observations in response, sent the parties away to continue their negotiations.
The parties continued their negotiations on 24 and 25 July 2008 and, although I was not then sitting to hear the case, on 28 July 2008. Their negotiations culminated late in the afternoon of 29 July 2008 in a complete agreement in relation to the section 8 proceedings which meant that I was able to approve the agreed draft consent order put in front of me without hearing any evidence or submissions (other than in relation to Mr Holden’s role) and without giving a judgment.
In consequence I was never required to rule on the generality of the mother’s application that Mr Holden be granted a right of audience, in particular that part of her application directed to him being permitted to examine and cross-examine witnesses. The only matter on which I was required to rule was in relation to the much narrower point that had arisen on 24 July 2008.
I now give my reasons for the ruling I made on 24 July 2008. In the circumstances I am content to hand down my judgment in open court. That is the course that appeals to the father and there is no objection from either the mother or the guardian – though that cannot be determinative, for these are matters to be decided by the judge on a principled basis not determined by the mere agreement (or veto) of the parties. But it is, in my judgment, the right course to adopt, not least bearing in mind the important and too-often overlooked principles of open justice – ‘transparency’ in the current jargon – to which Mr Bogle and Dr Pelling correctly and compellingly made reference.
The law
I have been taken to a number of decisions of the Court of Appeal. Unhappily they are not all ad idem and, since the most recent appear to have been decided per incuriam, I am faced with a position of some embarrassment.
The starting point is, of course, the statutory scheme embodied in the Courts and Legal Services Act 1990. The situations where someone has a right of audience are identified in section 27 of the Act. So far as concerns a McKenzie friend the relevant provision is in section 27(2)(c), which provides that:
“A person shall have a right of audience before a court in relation to any proceedings only in the following cases –
…
(c) where … he has a right of audience granted by that court in relation to those proceedings”.
In terms of the case-law the starting point is the decision of the Court of Appeal (Lord Woolf MR, Waite and Waller LJJ) in D v S (Rights of Audience) [1997] 1 FLR 724, a case which, as it happens, also involved Dr Pelling. Giving a judgment with which both Waite and Waller LJ agreed, Lord Woolf MR said (at page 728) that the discretion conferred by section 28(2)(c) was “to be exercised only in exceptional circumstances.” Courts, he said, “should pause long before granting rights of audience” to Dr Pelling or others in a similar position “because otherwise by considering each case individually, the collective effect … is allowing Dr Pelling to bypass the provisions of the Act.” Lord Woolf also made clear that the matter was not one for the consent of the parties and that the fact that the court might be assisted by the McKenzie friend was not of itself reason for granting a right of audience to a McKenzie friend.
In Milne v Kennedy [1999] TLR 106, the Court of Appeal (Aldous and Waller LJJ) held that it was bound by D v S (Rights of Audience) [1997] 1 FLR 724 and said that as the judge had not identified any circumstances which could be regarded as exceptional his decision could not be upheld.
The third decision is that of the Court of Appeal (Lord Woolf CJ and Waller and Clarke LJJ) in Clarkson v Gilbert [2000] 2 FLR 839, where it was held that the same objections to granting rights of audience did not apply to a husband who merely wished to assist his wife by representing her in court. The court indicated that where a close relative was seeking to represent a party the question was whether there was good reason on the facts to grant it, such as ill health or lack of means. Lord Woolf CJ at para [20] qualified the language he had earlier used in D v S (Rights of Audience) [1997] 1 FLR 724:
“what I indicated in that case was intended for a situation which was of the sort there described and did not deal with a situation where a husband wished to appear for his wife. It does not matter whether it is said that the position is different in that case or whether it is said that the fact that a husband wishes to appear for somebody who is part of the same family makes it an exceptional situation. It is clear that the objections to someone setting themselves up as an unqualified advocate do not exist in a matter where a husband is merely seeking to assist his wife.”
Earlier at para [17] he had said:
“The overriding objective is that the courts should do justice. Now that legal aid is not available as readily as it was in the past means that there are going to be situations where litigants are forced to bring proceedings in person when they will need assistance. However, if they are litigants in person they must, in my judgment, establish why they need some other person who is not qualified to appear as an advocate on their behalf. In the ordinary way it will be for them to satisfy the court that that is appropriate. If somebody’s health does not, or may not, enable them to conduct proceedings themselves, and if they lack means, those are the sort of circumstances that can justify a court saying that they should have somebody who can act as an advocate on their behalf.”
Explaining why in that particular case the order should be made he added at para [23]:
“I am satisfied that there would be a danger of Professor Clarkson being deprived of her right to have the case conducted before the courts in a way which would enable her claims to be investigated if she did not have the assistance of her husband as an advocate.”
Waller LJ at para [26] said this:
“I agree with my Lord on the proper principles to be applied to an application for a close relative to represent a litigant in person in order to have that right of audience. I also associate myself with my Lord’s remarks in relation to his judgment in D v S (Rights of Audience) [1997] 1 FLR 724; I was a party to that judgment on that occasion. The position of a close relative seeking to exercise a right of audience is very different from the circumstances with which that case was concerned and it is unfortunate that the judge was possibly misled into applying a wrong test, as he did.”
Clarke LJ at paras [28]-[30] said this:
“[28] I agree with both judgments. The judge directed himself that the question which he should answer was whether there were exceptional circumstances which justified granting Mr Keter rights of audience under s 27(2)(c) of the Courts and Legal Services Act 1990. I agree with my Lords that that is not the relevant question in a case of this kind. As I see it, the question is simply whether, in all the circumstances of the case, the court should exercise its discretion under s 27(2)(c). The section does not in any way fetter the exercise of the court’s discretion, although the discretion must be exercised in the light of the objective of Part II of the Act set out in s 17(1) and of the general principle set out in s 17(3). In exercising the discretion in any particular case, I agree that the court must have in mind the general principles referred to by Lord Woolf. There is a spectrum of different circumstances which may arise so that it is difficult to lay down precise guidelines. Cases will vary greatly. For example, in a case where the proposed advocate is holding himself out as providing advocacy services, whether for reward or not, the court will only make an order under s 27(2)(c) in exceptional circumstances: D v S (Rights of Audience) [1997] 1 FLR 724. On the other hand, where the proposed advocate is a member of the litigant’s family, the position is likely to be very different, although, as this case shows, even in such cases the circumstances may vary widely.
[29] There is, in my judgment, no warrant for holding that in such cases an order should only be made in exceptional circumstances. To my mind there is nothing in any of the decisions to which we were referred, including D v S (Rights of Audience) [1997] 1 FLR 724, which requires us so to hold. All will depend upon the circumstances.
[30] It follows that the judge did not ask the correct question and that it is for this court to exercise its own discretion. That discretion should only be exercised for good reason. The question is whether, having regard to the general principles set out by Lord Woolf, there is good reason on the facts of this case to permit Mr Keter to speak on behalf of the claimant at the forthcoming interlocutory applications and at any trial. To put it another way: is it just to permit him to do so?”
Mr Bogle seeks to distinguish that case from the present in a number of different ways. His arguments can I think be summarised as follows:
First, he says there were significant differences in that case to this. In that case the McKenzie friend was the claimant’s husband and she had suffered an angina attack and suffered from depression. Moreover, the husband was a law student who had completed Bar finals. Attempts had been made to obtain a lawyer to act on a conditional fee or pro bono but without success. Here, in contrast, the proposed McKenzie friend was neither a husband nor a relative but only a “family friend” and there was no evidence of ill health on the part of the mother.
Secondly, he says, one cannot read into anything in Clarkson that the court intended its remarks to apply to all but ‘professional’ McKenzie friends, and it would surprising indeed if that is what the court intended by its reference to a husband or a relative. The decision in that case was intended to be confined to the proposition that a spouse, partner or relative could act when circumstances were unusual or where there was a good reason for allowing them rights of audience, such as when the litigant was in poor health and had no access to public or other funding for legal representation. The general principle enunciated in D v S (Rights of Audience) [1997] 1 FLR 724 continues to apply, he says, to the general class of McKenzie friends – a class not limited to ‘professional’ McKenzie friends – addressed in both D v S (Rights of Audience) [1997] 1 FLR 724 and Paragon Finance plc v Noueiri (Practice Note) [2001] EWCA Civ 1402, [2001] 1 WLR 2357 (see below). In other words, spouses, partners and relatives fall into what he calls “a special category of representative for whom an exception is made where there is a good reason so to do”, a category, he says, which cannot embrace all McKenzie friends with the sole exception of those who are ‘professional’ McKenzie friends.
Thirdly, and applying this analysis, he submits that Mr Holden does not fit into the class of McKenzie friends for whom an exception is made. Accordingly, and because there are no exceptional circumstances, it would not be proper for him to act as an advocate in these proceedings.
Ms Hudson submits that even if D v S (Rights of Audience) [1997] 1 FLR 724 is still to be regarded as the leading authority it should nonetheless be distinguished in the way suggested by the judges themselves in Clarkson v Gilbert [2000] 2 FLR 839. So in considering the present application I should consider first and foremost the person proposed as the advocate and his relationship with the mother and thereafter the reasons why she seeks such representation.
The next case is Paragon Finance plc v Noueiri (Practice Note) [2001] EWCA Civ 1402, [2001] 1 WLR 2357, where the Court of Appeal consisted of Brooke, Tuckey and Laws LJJ. It is clear (see at paras [54], [66] and [67]) that the Court of Appeal treated the law as being correctly laid down in the judgment of Lord Woolf MR in D v S (Rights of Audience) [1997] 1 FLR 724; Brooke LJ reiterated that permission to exercise a right of audience was to be granted only in an “exceptional” case. Unfortunately, however, the Court of Appeal made no reference to, and seems not to have been referred by anyone to, Clarkson v Gilbert [2000] 2 FLR 839. (This omission makes all the more piquant Brooke LJ’s reference at para [66] to the “widespread ignorance of the general guidance given by Lord Woolf MR in D v S (Rights of Audience) [1997] 1 FLR 724 … no doubt because his judgment was only reported in the Family Law Reports.”)
It should be noted that Brooke LJ also endorsed (at para [67]) Peter Gibson LJ’s observation in Mensah v Islington London Borough Council CAT 2384 of 2000 at para [56] that “Anyone who aspires to be an advocate should obtain the requisite qualification, and the court should be very slow to permit those who are allowed to be present in court as McKenzie friends to act as advocates.”
Next, I should refer to the guidance issued by the President of the Family Division, Sir Mark Potter P, on 13 May 2005 and published at [2005] Fam Law 405. The relevant part of this provided as follows:
“A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] 1 FLR 724, Milne v Kennedy and Others [1999] TLR 106, Paragon Finance PLC v Noueiri (Practice Note) [2001] 1 WLR 2357). The litigant must apply at the outset of a hearing if he wishes the MF to be granted a right of audience or the right to conduct the litigation (Clarkson v Gilbert [2000] 2 FLR 839).”
Although reference is (correctly) made to Clarkson v Gilbert [2000] 2 FLR 839 as authority for the proposition that if he wishes his McKenzie friend to be granted a right of audience the litigant must make an application at the outset of the hearing, the unqualified assertion is made that a McKenzie friend can be granted a right of audience “in exceptional circumstances only.”
The President’s guidance was considered by the Court of Appeal (Thorpe and Hooper LJJ) in Re D (A Child) [2005] EWCA Civ 347. Thorpe LJ at para [3] said this:
“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 McKenzie 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.”
He added at para [4]:
“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” – Mr Francis was a struck off solicitor – “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.”
Hooper LJ agreed.
Mr Bogle, referring to what Thorpe LJ had said in para [3] in relation to fairness when both parties were in person, submits that it would be tempting but fallacious to argue from this that as the father is now represented by counsel, then the mother should not be denied the advocate of her choice. For this, as he points out, would immediately drive a coach and horses through the principles laid down in the reported cases and lead to any litigant in person being allowed an unqualified advocate in a case where the other party was professionally represented. Fairness and parity, he says, are maintained in those circumstances by the equal right of the litigant in person to elect to be professionally represented.
Revised guidance, superseding the earlier guidance and omitting all reference to the authorities, was issued by Sir Mark Potter P on 14 April 2008. It is reported as President’s Guidance: McKenzie Friends [2008] 2 FLR 110. The material paragraph is in very similar terms to the earlier guidance:
“A court may grant an unqualified person a right of audience in exceptional circumstances and after careful consideration. If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an application must be made at the start of the hearing.”
I was not referred to any other authorities.
Discussion – the law
In my judgment the law is to be found as set out in Clarkson v Gilbert [2000] 2 FLR 839 and, in particular, in the passages from the judgment of Clarke LJ which I have quoted in paragraph [28] above.
The starting point is that a McKenzie friend does not, as such, have a right of audience and, as Clarke LJ put it, that the court can exercise its discretion to grant a McKenzie friend a right of audience in accordance with section 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 section 17(1) of the Act and the “general principle” set out in section 17(3). Moreover, as Peter Gibson LJ said in Mensah v Islington London Borough Council CAT 2384 of 2000 at para [56], in the passage endorsed by Brooke LJ in Paragon Finance plc v Noueiri (Practice Note) [2001] EWCA Civ 1402, [2001] 1 WLR 2357, at para [67], the court should be “very slow” to grant a McKenzie friend a right of audience.
But this is not to say that, as a general principle, such an order can be made only in ‘exceptional’ circumstances. As Clarke LJ pointed out in Clarkson v Gilbert [2000] 2 FLR 839 at para [28], that would be, in effect, to read restrictive words into a statute which confers an unfettered discretion. Moreover, both Waller LJ (at para [26]) and Clarke LJ (at para [30]) were quite clear that the judge at first instance (Eady J) had misdirected himself in law and applied the “wrong test” in saying that such an order could be made only in exceptional circumstances.
As Clarke LJ said (at para [28]), “There is a spectrum of different circumstances which may arise so that it is difficult to lay down precise guidelines. Cases will vary greatly.” He added (at para [29]), “All will depend upon the circumstances.” At one end of the spectrum there will be the ‘professional’ McKenzie friend who acts also as an advocate, the person, as Lord Woolf CJ put it (at para [20]), “setting themselves up as an unqualified advocate” or, as Clarke LJ put it (at para [28]), “holding himself out as providing advocacy services, whether for reward or not.” There, as a general principle, the court will make an order only in exceptional circumstances. At the other end of the spectrum there will be the McKenzie friend who is the litigant’s spouse or partner, though even there, as Clarke LJ was careful to point out, the circumstances may vary widely. In between – and Mr Holden falls somewhere between the two ends of the spectrum though as it seems to me much nearer the spouse / partner McKenzie friend end of the spectrum than the ‘professional’ McKenzie friend advocate end of the spectrum – there will be a very wide range of circumstances which it is futile and indeed impossible to classify or categorise. One is, after all, faced with a spectrum and not, as some of Mr Bogle’s submissions tended to suggest, a set of pigeon holes.
At the end of the day one has to remember that, as Lord Woolf CJ put it (at para [17]), “The overriding objective is that the courts should do justice.” And one also has to bear in mind, as he observed, the reality that legal aid is not available as readily as it was in the past, leading, as the President’s Guidance: McKenzie Friends [2008] 2 FLR 110 comments, to the growth of litigants in person in all levels of family court. Moreover, as the Guidance reminds us, “the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing.” Similarly, in my experience, there will be occasions – sometimes; sometimes not – when the grant of rights of audience to a McKenzie friend will, to adopt the President’s words, be of advantage to the court in ensuring the litigant in person receives a fair hearing. Sometimes, indeed, it will be essential if justice is to be done and, equally importantly, perceived by the litigant in person as having been done.
Discussion – the facts and the exercise of discretion
Applying these principles to the perhaps unusual circumstances of the present case – summarised in the mother’s submissions and Ms Hudson’s submissions as I have set them out in paragraphs [8] and [10] above – I have no doubt that the mother was able to show “good reason” why Mr Holden should be granted a right of audience, not merely in the limited circumstances as they presented themselves to me on 24 July 2008 but also, if the occasion had arisen, for the more general purposes envisaged at the outset of the hearing on 21 July 2008. If it was necessary to go this far – and in my judgment it is not – I would be prepared to say that the circumstances were indeed, as Ms Hudson submitted, exceptional.
In coming to these conclusions I have evaluated, as one must, all the circumstances of the case, looking at them in the round and seeking to assess their overall impact against the background of sections 17(1) and 17(3) of the 1990 Act. But I have in particular had in mind the factors identified by the guardian which I have summarised in paragraph [10(iii)] above – especially, the nature of the proceedings, the fact that the mother, as it seems to me through no fault of her own, was lulled into a false assumption that there would be no challenge to Mr Holden being allowed to address the court, and the likelihood that, had I rejected her application, I would have been compelled to grant an adjournment in circumstances that would have been gravely prejudicial to N’s welfare and indeed contrary to his wishes.
Costs
Whilst I can understand why Ms Hudson raised the question at one stage – and this was not something which in the event she pursued – I do not think there is any justification in the circumstances for making any order as to costs.
Anonymisation
I prepared this judgment and sent it to the parties in draft in anonymised form, intending that although it should be handed down in public, and that the public text should include the names of the lawyers and of the McKenzie friends, the names of the parties and of their son should not be disclosed.
The father, in subsequent written submissions prepared for him by Dr Pelling, says that there are no good reasons for anonymisation, and good reasons against it. The judgment, he says, concerns only an issue about rights of audience, does not concern the private lives of the parties or of N and contains little which, if published by an individual, would be a contempt: see section 12 of the Administration of Justice Act 1960 and X v Dempster [1999] 1 FLR 894. Dr Pelling says that he and the father wish to be free to write and talk about the proceedings but that it would be quite artificial and unnecessary for the father to conceal the fact that he was a party and was speaking from direct experience. He refers in this context to the acceptance by the Court of Appeal in Clayton v Clayton [2006] EWCA Civ 878, [2006] Fam 83, that Mr Clayton should be free to publicise his agreed shared care parenthood plan from his own experience and under his own name. Further, he says, anonymisation inhibits the free interchange of ideas and communication of experience in a democratic society and if the case is anonymised then it will be difficult for anyone interested to contact the father, though others interested in rights of audience and McKenzie friend issues may well wish to do so. He adds that there is a case for changing the law in regard to rights of audience but campaigning is inhibited if one does not know the identities of those involved in setting case precedents. For how can one make contact? (I do not fully understand this point, because the name of the father’s solicitors appears on the front-sheet and will, no doubt, be printed in any published law report.)
Dr Pelling recognises that the section 8 proceedings are still on foot, for I have directed a review in 2009, and that accordingly section 97(2) of the Children Act 1989 continues to apply, so that if the statutory anonymisation is to be lifted I will have to exercise my powers under section 97(4). In that connection he points to my judgment in Re Webster, Norfolk County Council v Webster and others [2006] EWHC 2733 (Fam), [2007] 1 FLR 1146, at paras [57]-[62], where I held that section 97(4) must be construed in such a way that the section 97(2) prohibition can be lifted when Convention rights require it and not merely when the welfare of the child requires it. And he points out that in that case I made an order under section 97(4) dispensing with the requirements of section 97(2) in circumstances in which, by comparison, he says, the present case is a fortiori. And he points out that in In the Matter of the Children of Mr O’Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759, [2005] 2 FLR 967, although the relevant Children Act proceedings were still ongoing the Court of Appeal, on a McKenzie friend issue, saw no reason to anonymise the parties.
In every case, as he correctly points out, there should be a proper consideration of Convention rights under Articles 6, 8 and 10, to see if there is any justification for anonymisation. And, he says, where the issues do not in fact involve private and family life, as in a McKenzie friend or right of audience issue, the burden must surely be upon any person, including the judge, to justify anonymity. That balance, he asserts, comes down clearly against anonymisation, for in the balance between Articles 6, 8 and 10 there is nothing private, or only de minimis, to put in the balance on the Article 8 side whereas there is, he says, a great deal on the Articles 6 and 10 and what he calls the common law side. He says it is absurd to suggest that any privacy inheres in one’s own name or in the mere fact of being involved in legal proceedings – he says that if you live in a democracy then everyone is known by his name and if you invoke the public organs of the state apparatus of the judicial system that is not a private matter. And he condemns what he calls the absurd tendency that only in cases like Webster or Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005] 1 FLR 648, where there is mega-publicity and interest does the court lift anonymity restrictions, whereas in more humble cases like this, where few people and certainly not national newspapers are interested, it imposes anonymity – a proposition which, I should make clear, I do not accept as accurately reflecting current practice.
The mother’s response focuses upon N’s welfare. She points out that the litigation, or “the trouble” as N calls it, has been going on for almost his entire life and that the very purpose of the consent order was to put an end to this and allow N, as well as his parents, to move on and get on with their lives. She says that the father’s and Dr Pelling’s wish to publicise the case in connection with the rights of audience judgment cannot be in the best interests of N where he could be identified. She is very disturbed that N should be used as a pawn for what is, she says, clearly a political agenda and that the court should be being used to further that agenda. N is a child and should, indeed must, be protected. She concludes, “As a mother, I plead with the court … that there should be no possibility or chance that N could ever be identified … and I pray that [the father] will seek to protect his son from being used for purposes that would be of no benefit to anyone, but possibly Dr Pelling.
Ms Hudson, on behalf of N, also opposes any lifting of N’s anonymity. She points out that the judgment does contain some personal information about N and makes reference at paragraph [10(iii)] to the father’s allegations against the mother. Were the parents now to be named, it would follow, she says, that N would be easily identified. He is a child who has already been exposed to years of “the trouble” between his parents, a child who has begged both the guardian and the independent social worker for them to make the troubles stop. It would, she submits, be most unhelpful and inconsistent with N’s welfare were the difficulties surrounding his life to be exposed to anyone but the immediate circle of family and friends. Whilst transparency may well be an ideal we should strive for, this must not, she says, be at the expense of the welfare of the child. Each case needs to be viewed on its own individual merits. N has a fundamental right to privacy and this should not be infringed by any person’s desire to ‘make law’ or to facilitate campaigning. It is, she concludes, a matter of real regret that this point is being raised at this late stage, it having been the guardian’s earnest hope, now an order, so painfully negotiated at court, has been reached, that the parties could focus on making the order work and on promoting N’s best interests first and foremost.
Dr Pelling, in his rejoinder on behalf of the father, says that the references in the judgment to the parties’ domestic circumstances and the father’s allegations do not come anywhere near enough to warrant anonymising a whole judgment on a right of audience issue. But he takes, as his main objection to Ms Hudson’s submissions, the assumption, without a scrap of evidence he says, that N’s welfare would be harmed if he were identified or it were possible to identify him from the published judgment. The authorities, as he points out, referring in this context both to my judgment in Kelly v British Broadcasting Corp [2001] Fam 59 at pages 70 and to what the Court of Appeal said in Pelling v Bruce-Williams (Secretary of State for Constitutional Affairs Intervening) [2004] EWCA Civ 845, [2004] Fam 155 at para [35], require a proper evidential foundation, and not mere assumption or assertion. (That, of course, is so, but as I pointed put in Kelly at page 85, this does not mean that the court cannot use its common sense.) It is, he says, wrong of Ms Hudson to assume without evidence that transparent publication will be “at the expense of” the welfare of the child. In fact, he asserts, it is implausible that this would be the case, for we are talking about a judgment on a technical matter that is likely to be published in the legal press for the benefit of those involved in family and child related litigation, in particular litigants in person. The judgment, he says, will be of interest only to those who deal with these matters, so he cannot see how this could have any impact on N, notwithstanding that, as I have already mentioned, the father and Dr Pelling wish, as Dr Pelling puts it, to be free to write and talk about the proceedings. Moreover, he says, in this kind of decision the welfare of the child is not paramount.
It is quite clear that N’s interests are not paramount, and the submissions of both the mother and the guardian, each understandably focussing on his welfare, have to be addressed with that crucial caveat in mind. But that does not, of course, mean that his interests do not carry weight. Indeed, in undertaking the “ultimate balancing test” described by Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, at para [17], it is necessary, as Lord Steyn observed at para [25], to measure the impact on the child of what is proposed, just as it is necessary to focus on the specific circumstances of the particular case. For, as Lord Steyn said at para [17], when, as here, the values under different Articles of the Convention are in conflict, “an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.”
In my judgment the circumstances of the present case are very different from those in Webster with which Dr Pelling seeks to draw a comparison, for there are lacking in the present case some of the factors which in Webster pulled most strongly away from anonymisation whereas, conversely, the impact of publicity on N, not least given his age and awareness of the proceedings, is likely to be much more significant than was the likely impact on baby Brandon. And contrary to what Dr Pelling would have me accept, the guardian has given solid reasons for what, in my judgment, are her entirely justified concerns about the likely impact on N. This is a child who has already suffered enough from the litigation – “the trouble” – and who is likely to suffer even more if he knows that the names of his parents are being bandied about in the public discussions of the case which his father and Dr Pelling now seem intent upon.
As against that, and not least bearing in mind the nature of the issues with which this judgment is concerned, I do not see how public discussion of those issues, or indeed of the wider issues to which it possibly invites attention, is going to be significantly inhibited by reason only of the fact that the parties’ names will not be in the public domain – in contrast to the names of their lawyers and the name of the McKenzie friend. And it is not irrelevant to bear in mind that, the proceedings being still on foot, section 97(2) operates unless and until the court for good reason determines otherwise.
In my judgment, the balance in this particular instance and at this stage comes down in favour of preserving N’s anonymity. In my judgment the detriment he would suffer were his anonymity to be removed significantly outweighs any detriment either the father or the world at large will suffer by being denied the right to discuss matters by reference to the names of the parties. I decline to make any order lifting the statutory anonymity arising by virtue of section 97(2). I remain of the view that this judgment, although appropriately to be handed down in open court – in public –, should nonetheless be anonymised.