Factual and Procedural Background
The case concerns litigation involving a child born in 2001, whose parents have never been married. The child's life has been dominated by ongoing legal proceedings between the parents, including matters under Part IV of the Family Law Act 1996, section 8 of the Children Act 1989 ("section 8 proceedings"), and section 15 and Schedule 1 to the Children Act 1989 ("Schedule 1 proceedings"). The court had been managing the Schedule 1 proceedings for some time and had recently taken responsibility for the section 8 proceedings.
Throughout the Schedule 1 proceedings, the mother was represented by solicitors and counsel, while the father appeared in person with the assistance of a McKenzie friend. On occasion, the McKenzie friend was permitted to address the court on technical points of law and procedure. The final hearing of the section 8 proceedings took place on 21 July 2008, with the mother appearing in person assisted by a McKenzie friend and the father represented by counsel and attended by his McKenzie friend acting as solicitor's clerk.
At the outset of the hearing, objection was raised to the mother's McKenzie friend being allowed to speak on her behalf, examine and cross-examine witnesses, and make submissions, due to failure to make an application at the start of the hearing and absence of exceptional circumstances. The court directed written submissions on the matter.
Negotiations between the parties continued, and on 24 July 2008, the mother sought to have her McKenzie friend granted a limited right of audience to address the court on a specific issue arising from the relationship between the section 8 and Schedule 1 proceedings. The court considered the matter and granted a limited right of audience to the mother's McKenzie friend for this purpose. Subsequently, the parties reached a full agreement in relation to the section 8 proceedings, and the court approved a consent order without further evidence or judgment on the broader representation issue.
Legal Issues Presented
- Whether a McKenzie friend may be granted a right of audience to speak on behalf of a litigant in person, including the extent and conditions under which such rights may be exercised.
- Whether the circumstances of the mother in this case justify granting her McKenzie friend a right of audience, either generally or for specific limited purposes.
- The appropriate legal test and discretion to be applied by the court when deciding to grant a right of audience to a McKenzie friend under section 27(2)(c) of the Courts and Legal Services Act 1990.
- Whether the judgment and the identities of the parties and their child should be anonymised in the public record, balancing principles of open justice against the child's welfare and privacy rights.
Arguments of the Parties
Appellant's Arguments (Mother)
- The mother had previously been represented by solicitors but could no longer afford legal representation due to high costs.
- She was emotionally involved and unable to present her case articulately, including cross-examining witnesses.
- The McKenzie friend, a family friend and businessman, had been assisting her for months and had appeared on her behalf previously.
- She noted that the father had the benefit of a McKenzie friend throughout the proceedings and assumed she would be afforded the same courtesy.
- If the application was refused, she would have to seek an adjournment to instruct new solicitors, which would delay resolution and be detrimental to the child's welfare.
Respondent's Arguments (Father)
- Objection to the mother's McKenzie friend being granted a right of audience due to failure to apply at the start of the hearing and lack of exceptional circumstances.
- Reliance on the authority that rights of audience to McKenzie friends should only be granted in exceptional circumstances.
- Distinction drawn between the mother's McKenzie friend and the father's McKenzie friend, noting the former was a family friend rather than a relative or spouse.
- Submission that the mother’s situation did not meet the threshold of exceptional circumstances required for such a grant.
- Argument that granting the mother’s McKenzie friend rights of audience would undermine established legal principles and the statutory scheme.
Guardian's Arguments
- Supported the mother's application for her McKenzie friend to have rights of audience.
- Emphasized the highly charged, acrimonious, and complex nature of the proceedings, which justified the need for advocacy assistance.
- Noted the mother’s lack of means and emotional involvement, and the fact that the father had been regularly assisted by a McKenzie friend.
- Expressed concern that refusal would severely compromise the mother's position and likely lead to adjournment, detrimental to the child's welfare.
- Criticized the father's opposition as uncooperative and potentially upsetting to the mother, with implications for negotiation and case management.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| D v S (Rights of Audience) [1997] 1 FLR 724 |
Rights of audience for McKenzie friends should be granted only in exceptional circumstances; court discretion must be exercised cautiously. |
Confirmed the stringent requirement of exceptional circumstances for granting rights of audience to McKenzie friends acting as advocates; court exercised discretion in light of this precedent. |
| Milne v Kennedy [1999] TLR 106 |
Affirmed the exceptional circumstances test from D v S; absence of exceptional circumstances invalidates granting rights of audience. |
Reinforced the necessity for exceptional circumstances; court considered this precedent in assessing the mother's application. |
| Clarkson v Gilbert [2000] 2 FLR 839 |
Distinguished from D v S; close relatives seeking rights of audience may be granted them based on good reason, such as ill health or lack of means, without strict application of exceptional circumstances. |
Adopted the more flexible approach for non-professional McKenzie friends, especially close relatives or those near that category; court applied this reasoning to the mother's McKenzie friend. |
| Paragon Finance plc v Noueiri (Practice Note) [2001] 1 WLR 2357 |
Endorsed the exceptional circumstances requirement for granting rights of audience; court should be very slow to grant rights to unqualified advocates. |
Referenced in considering the limits of court discretion; emphasized caution in granting rights of audience. |
| Mensah v Islington London Borough Council [2000] EWCA Civ 405 |
Court should be very slow to permit McKenzie friends to act as advocates without requisite qualification. |
Supported the general principle of judicial caution in granting rights of audience to McKenzie friends. |
| Re D (A Child) [2005] EWCA Civ 347 |
Confirmed that rights of audience for McKenzie friends are discretionary and subject to exceptional circumstances and careful consideration. |
Reinforced guidance on fairness and parity, particularly when parties appear in person; court referenced this in balancing the parties' positions. |
| Scott v Scott [1913] AC 417 |
Affirmed the common law principle of open justice and public pronouncement of judgments. |
Applied in deciding whether to hear the matter in open court or in chambers, balancing transparency against procedural fairness. |
| X v Dempster [1999] 1 FLR 894 |
Considerations on anonymisation and publication restrictions in family law proceedings. |
Referenced in submissions opposing anonymisation; court considered the balance of privacy and open justice. |
| Kelly v British Broadcasting Corp [2001] Fam 59 |
Requirement for evidential foundation when restricting publication to protect welfare interests. |
Referenced in assessing whether anonymisation was justified given the child's welfare concerns. |
| Pelling v Bruce-Williams (Secretary of State for Constitutional Affairs Intervening) [2004] EWCA Civ 845 |
Emphasized the need for proper evidential basis before restricting publication in family proceedings. |
Considered in the court's balancing exercise regarding anonymisation. |
| In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47 |
Outlined the "ultimate balancing test" for conflicting Convention rights, focusing on the specific circumstances of the case. |
Applied in weighing the child's welfare against open justice and freedom of expression. |
| Re Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) |
Considered lifting anonymity restrictions under section 97(4) of the Children Act 1989 in light of Convention rights. |
Distinguished from the present case; court found factors supporting anonymity here stronger than in Webster. |
| Blunkett v Quinn [2004] EWHC 2816 (Fam) |
Addressed issues of anonymity and publicity in family law cases with significant public interest. |
Referenced in submissions on anonymisation; court noted differences in publicity and public interest compared to the present case. |
| Clayton v Clayton [2006] EWCA Civ 878 |
Discussed the public's right to know and the ability of parties to publicise family law arrangements. |
Referenced by the father and McKenzie friend in opposing anonymisation; court considered but prioritized child's welfare. |
Court's Reasoning and Analysis
The court began by outlining the statutory framework under the Courts and Legal Services Act 1990, particularly section 27(2)(c), which grants the court discretion to allow a right of audience to a person, such as a McKenzie friend, but only upon the court's grant.
The court reviewed the leading authority in D v S, which established that rights of audience for McKenzie friends should be granted only in exceptional circumstances and with caution to avoid undermining statutory provisions. Subsequent cases, including Milne v Kennedy, reinforced this principle.
However, the court acknowledged the decision in Clarkson v Gilbert, which qualified the strict exceptional circumstances test for close relatives acting as advocates, allowing a more flexible approach based on good reason, such as ill health or lack of means.
The court noted that McKenzie friends exist on a spectrum: from 'professional' advocates acting without qualification, where exceptional circumstances are required, to close relatives or partners assisting litigants, where the court's discretion is broader. The mother’s McKenzie friend was found to fall closer to the latter category.
The court emphasized the overriding objective that courts should do justice, recognizing the increased prevalence of litigants in person due to restricted legal aid. It also acknowledged that McKenzie friends can be advantageous in ensuring a fair hearing.
Applying these principles to the facts, the court found that the mother demonstrated good reason to grant her McKenzie friend a right of audience, considering her financial inability to secure representation, emotional involvement, the complexity and acrimony of the proceedings, and the father's prior use of a McKenzie friend.
The court also considered the procedural irregularity of the mother's failure to apply at the hearing's outset but found that the circumstances justified granting at least a limited right of audience.
Regarding anonymisation, the court balanced the principles of open justice and transparency against the welfare and privacy of the child. It recognized that while the welfare of the child was not paramount in these proceedings, it was a significant factor. The court found that the potential detriment to the child from loss of anonymity outweighed the father's and public interest in disclosure of the parties' identities. The judgment was therefore anonymised, preserving the names of the parties and the child, while disclosing the names of the lawyers and McKenzie friends.
Holding and Implications
The court granted a limited right of audience to the mother's McKenzie friend for the specific purpose of addressing the court on a particular issue arising during the proceedings. The broader application for full advocacy rights was not determined due to the parties' subsequent agreement.
The court clarified the legal framework governing rights of audience for McKenzie friends, endorsing a flexible approach depending on the nature of the McKenzie friend and the circumstances of the case, rather than a rigid requirement of exceptional circumstances in all cases.
Regarding anonymisation, the court upheld the statutory anonymity protections for the child and the parties, concluding that the child’s welfare concerns justified withholding their identities from the public judgment, despite arguments favoring open justice and transparency.
This decision underscores the court's careful balancing of statutory discretion, fairness to litigants in person, and the welfare interests of children in family proceedings. It does not establish new precedent but affirms and applies existing legal principles in the context of McKenzie friends' rights of audience and anonymisation in family law cases.