Family law

The applicant mother (M) applied for permission to be represented by a McKenzie friend at a hearing in proceedings with the respondent father (F) under the Children Act 1989 in respect of their child.

During proceedings for financial provision under schedule 1 of the 1989 act, M had been represented by solicitors and F had appeared in person with the assistance of an experienced McKenzie friend. On occasions, the court had granted rights of audience to F’s McKenzie friend. By the time of the final hearing in related proceedings under section 8 of the 1989 act M could no longer afford legal representation and she appeared in person with a family friend as her McKenzie friend. F was represented by counsel and solicitors. Negotiations for settlement began, but M wished to raise before the judge an issue about the relationship between the schedule 1 and section 8 proceedings, and requested that her McKenzie friend make representations on her behalf. F argued that M’s McKenzie friend should not be given rights of audience because the general rule was that there had to be exceptional circumstances for an order to be made, and there were no exceptional circumstances, and that M’s McKenzie friend did not fall into the special category of spouse, partner or relative for whom an exception could be made.

Held: (1) A court could exercise its discretion to grant a McKenzie friend a right of audience in accordance with section 27(2)(c) of the Courts and Legal Services Act 1990 only for ‘good reason’ and in the light of and bearing in mind the ‘general objective’ in section 17(1) and the ‘general principle’ in section 17(3). A court should be very slow to grant a McKenzie friend a right of audience, Mensah v Islington LBC (unreported) 18 October 2000 CA and Noueiri v Paragon Finance Plc (No2) [2001] EWCA Civ 1402, [2001] 1 WLR 2357 applied. There was no general principle that such an order could only be made in exceptional circumstances, Clarkson v Gilbert (Rights of Audience) [2000] CP Rep 58 CA (Civ Div) applied, D v S (Rights of Audience) [1997] 1 FLR 724 CA (Civ Div) considered. There was a spectrum of circumstances that could arise and so no specific guidance could be given. At one end of the spectrum was a ‘professional’ McKenzie friend and at the other end was a McKenzie friend who was the litigant’s spouse or partner. The individual circumstances of each case had to be considered. As a general principle the court would only grant rights of audience to a professional McKenzie friend in exceptional circumstances. It was necessary to bear in mind that the overriding objective was that the courts should do justice, that legal aid was no longer as readily available as it had been in the past and that there would be occasions when the grant of rights of audience to a McKenzie friend would be of advantage to the court in ensuring the litigant in person received a fair trial.

(2) In the instant case, M’s McKenzie friend fell between the two ends of the spectrum, but nearer to the spouse and partner end. Considering all the circumstances, and in particular the nature of the proceedings, the fact that the mother had been lulled into a false assumption that there would be no challenge to her being represented by a McKenzie friend because of F’s previous use of a McKenzie friend, and the likelihood that if her application were rejected it would result in an adjournment that would be prejudicial to the child’s welfare and contrary to his wishes, M had been able to show ‘good reason’ why her McKenzie friend should be granted a right of audience.

Application granted.

James Bogle (instructed by Bance Commercial Law) for A (the father) in the section 8 proceedings; Dr Michael Pelling (instructed by Bance Commercial Law) for A (the father) in the schedule 1 proceedings; Kate Hudson (instructed by Goodman Ray) for N (the child); in person for G (the mother) assisted by her McKenzie friend.