H (A Child), Re

Factual and Procedural Background

This opinion concerns an application by the Appellant for permission to appeal a decision denying him the assistance of a McKenzie friend, specifically an individual referred to as Dr Pelling, at a contested contact hearing scheduled in the Basildon County Court. The procedural history includes an earlier directions hearing before Judge Ludlow in the Chelmsford County Court on 19th July, where the Appellant’s request for a McKenzie friend was refused but not appealed. Subsequently, the Appellant sought and was granted a listing for an application for assistance by Dr Pelling on 12th September before Judge Worsley, who refused the application, refused permission to appeal, and refused a stay of the hearing set for 28th September. The Appellant then applied to the appellate court for permission to appeal that refusal.

Legal Issues Presented

1. Whether the refusal by His Honour Judge Worsley to allow the Appellant to be assisted by a McKenzie friend (Dr Pelling) at a contested contact hearing was correct.
2. Whether the discretion exercised by the trial judge in denying the McKenzie friend was justifiable under the circumstances.
3. The extent to which a litigant in person is entitled to assistance by a McKenzie friend in family proceedings, particularly when facing contested issues.

Arguments of the Parties

Appellant's Arguments

• The Appellant expressed a strong sense of vulnerability and nervousness about attending the contested hearing without assistance.
• He argued that the assistance of Dr Pelling as a McKenzie friend was necessary to ensure fairness and confidence in the proceedings.
• It was contended that the adversarial and legalistic nature of the application hearing on 12th September was appropriate given the legal questions at stake regarding entitlement to a McKenzie friend.

Respondent's Arguments

• The Respondent supported the trial judge’s discretionary decision to refuse the McKenzie friend application, describing it as fully reasoned and justified.
• It was argued that Dr Pelling contributed to heated exchanges and that the hearing would be fairer, less adversarial, and less legalistic without his assistance.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged the discretionary nature of the trial judge’s decision, particularly given the procedural context and the judge’s observations of the parties during the application hearing. However, the appellate court expressed concern about the outcome of denying the Appellant assistance, especially given the vulnerability of litigants in person in family proceedings. The court noted the strong presumption in favour of permitting a McKenzie friend, emphasizing the importance of supporting litigants to maintain confidence and fairness in contested hearings.

The court considered the character and prior conduct of the proposed McKenzie friend, Dr Pelling, who was known to the court and had a history of acting helpfully. The trial judge’s criticism of Dr Pelling as too adversarial and legalistic was seen as based solely on the application hearing, which necessarily involved legal argumentation about entitlement to a McKenzie friend. The court found the inference that the substantive hearing would be similarly adversarial and legalistic to be unfounded, as the substantive issues involved practical judicial discretion rather than purely legal argument.

Balancing the need to respect the trial judge’s discretion with the importance of fairness to the Appellant, the court concluded that the refusal to allow Dr Pelling’s assistance was not justified.

Holding and Implications

The court granted the Appellant permission to have Dr Pelling assist him as a McKenzie friend at the contested hearing on 28th September, thereby reversing the trial judge’s refusal.

This decision directly affects the parties by allowing the Appellant the assistance he sought, promoting fairness in the conduct of the hearing. The court did not establish new legal precedent but reinforced the strong presumption in favour of permitting McKenzie friends in family proceedings to support litigants in person.