O'Connel & Ors (Children) Rev 2

Factual and Procedural Background

This judgment concerns three appeals relating to the practice of allowing unrepresented litigants in family law proceedings to be assisted by McKenzie friends, particularly in private hearings. The appeals raise two key issues: the circumstances under which unrepresented litigants may use McKenzie friends in private family proceedings, and the necessity of court permission to disclose confidential court documents to McKenzie friends or third parties.

The first two cases involved refusals by circuit judges to allow litigants in person the assistance of McKenzie friends. The third involved a judge permitting a McKenzie friend’s assistance but severely limiting the disclosure of documents to that friend.

The appellants were fathers involved in private law proceedings under section 8 of the Children Act 1989, contesting residence and contact with their children. The appeals were heard together to provide clear guidance on the use of McKenzie friends in family courts.

Legal Issues Presented

1. Under what circumstances may unrepresented litigants invoke the assistance of McKenzie friends in family proceedings held in private?
2. Is it necessary for an unrepresented litigant to seek the court’s permission before disclosing confidential court documents and information to a McKenzie friend or other third parties?

Arguments of the Parties

Appellant's Arguments

• There is a strong presumption in favour of allowing a litigant in person the assistance of a McKenzie friend, which should only be refused for compelling reasons.
• The ability of a litigant to present his case unaided is not a sufficient reason to refuse a McKenzie friend.
• Membership of a campaigning or interest group by a McKenzie friend is not a valid reason for refusal.
• The hearing being a directions appointment or case management hearing does not justify refusal.
• Disclosure of court documents to McKenzie friends should be permitted with appropriate safeguards, as it is essential for effective assistance.
• Permission to disclose to public authorities such as the local government ombudsman or police should be granted where there is a proper interest.

Respondent's Arguments

• Opposition to disclosure of confidential documents to a McKenzie friend unknown to the respondent, unregulated, and without court-recorded details.
• Concerns about the sensitive and confidential nature of the court papers and the effect of disclosure on the respondent and children.
• Arguments that public authorities seeking disclosure should initiate applications themselves.
• Submission that the limited disclosure order already made was sufficient for the appellant to present his case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McKenzie v McKenzie [1971] P. 33	Origin of the term "McKenzie friend"; right of any person to attend as a friend and assist a party by taking notes and giving advice.	Confirmed the evolving role of McKenzie friends and recognized their long-standing presence in family proceedings.
R v Leicester City JJ, ex p. Barrow [1991] 2 QB 260	Right of a party to have assistance; court may restrict if assistance is unreasonable or for improper purpose.	Emphasized strong presumption in favour of assistance by McKenzie friends unless fairness or justice requires otherwise.
Re G (Chambers Proceedings: McKenzie Friend) [1999] 2 FLR 59	Judicial discretion on presence of McKenzie friends in chambers; refusal upheld in limited circumstances.	Noted as an unusual case unlikely to be decided similarly today; affirmed the judge’s discretion but with caution.
Re H (Chambers Proceedings: McKenzie Friend) [1997] 2 FLR 423	McKenzie friends permitted in chambers proceedings if acting within proper role.	Supported the right to have McKenzie friends in chambers hearings, provided they do not exceed their role.
Re M (Contact: Family Assistance: McKenzie Friend) [1999] 1 FLR 75	Denial of McKenzie friend assistance was a ground for appeal; assistance often useful.	Regretted denial of assistance; reinforced the value of McKenzie friends in family litigation.
R v Bow County Court ex p. Pelling [1999] 2 FLR 1126	Limits on McKenzie friends’ rights; refusal to allow a McKenzie friend to act as such upheld where fairness justified.	Clarified that the court’s concern is the litigant’s interests; McKenzie friends have no enforceable right to act.
Re H (McKenzie Friend: Pre-Trial Determination) [2001] EWCA Civ 1444	Strong presumption in favour of McKenzie friends; refusal must be justified.	Allowed appeal against refusal; emphasized presumption in favour of assistance.
Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213	Article 6 ECHR: Right to fair hearing and equality of arms.	Supported the argument that litigants in person are entitled to reasonable assistance to avoid substantial disadvantage.
Yousef v The Netherlands [2003] 1 FLR 210	Article 8 ECHR: Competing rights between parents and child; child’s rights paramount.	Rejected as applicable to McKenzie friend issue; paramountcy of child welfare governed by statute.

Court's Reasoning and Analysis

The court began by acknowledging the evolution of the role of McKenzie friends since their inception in 1970 and the increasing number of litigants in person in family courts. It noted the inconsistency in judicial attitudes towards McKenzie friends, ranging from welcoming to outright refusal.

The court accepted the submissions that the presumption in favour of allowing a litigant in person the assistance of a McKenzie friend is strong and should only be rebutted by compelling reasons. It rejected reasons such as the litigant’s intelligence or mastery of the case, the private nature of the proceedings, or the hearing being a directions appointment as insufficient to refuse a McKenzie friend.

The court emphasized that judicial courtesy and fairness are paramount, especially when dealing with litigants in person who may be anxious or upset. It criticized judicial conduct in two of the cases for discourtesy and failure to allow proper assistance.

Regarding disclosure of court documents, the court examined statutory provisions including the Administration of Justice Act 1960, Children Act 1989 (as amended by the Children Act 2004), and Family Proceedings Rules 1991. It recognized a relaxation in restrictions due to the 2004 Act but maintained that confidentiality remains important.

The court held that a court-sanctioned McKenzie friend is not part of "the public at large" and that disclosure of documents to such a friend is permissible for the sole purpose of assisting the litigant. The McKenzie friend must understand and accept the responsibility not to disclose information further without court permission.

The court endorsed requiring litigants and McKenzie friends to express clear understanding of their roles and confidentiality obligations at the time of appointment, but did not require formal undertakings.

It also found no objection in principle to disclosure of documents to public authorities with a proper interest, such as the local government ombudsman and police, and allowed such disclosure in the relevant appeal.

Ultimately, the court found the refusals to allow McKenzie friends in the first two cases and the restrictions on disclosure in the third to be wrong and set aside the respective orders.

Holding and Implications

The court ALLOWED all three appeals.

It held that unrepresented litigants in family proceedings should be allowed the assistance of McKenzie friends unless compelling reasons exist to refuse. Reasons such as the litigant’s ability to conduct the case alone, the private nature of proceedings, or the hearing being a directions appointment are insufficient to justify refusal.

The court established that disclosure of court documents to a court-approved McKenzie friend is permissible for the purpose of assisting the litigant, subject to confidentiality obligations and the court’s control. Such disclosure does not constitute publication to the public at large under relevant statutes.

The court also allowed disclosure to public authorities with a proper statutory interest in the proceedings.

Judicial conduct towards litigants in person must remain courteous and fair, with a particular obligation on judges to ensure a full and fair hearing.

No new precedent was set beyond clarifying and endorsing the strong presumption in favour of McKenzie friends and the approach to disclosure in private family proceedings. The decision directly affects the parties by granting the assistance and disclosure sought and provides practical guidance for future family court practice.