By Gill Rivers, Collyer Bristow, London


New directions

The president of the Family Division has issued a new practice direction, dealing with the use of expert evidence and the instruction of experts in family proceedings relating to children, which came into force on 1 April 2008 (Experts in Family Proceedings relating to Children).



The guidance supersedes, for such proceedings, that which is contained in appendix C (The Code of Guidance for Expert Witnesses in Family Proceedings) to the Protocol of June 2003 (Judicial case management in Public Law Children Act cases) and in the practice direction to part 17 (Experts) of the Family Procedure (Adoption) Rules 2005.



The guidance aims to provide the court and family proceedings relating to children with early information to determine whether an expert or expert evidence will assist the court to: identify, narrow and - where possible - agree the issues between parties; provide an opinion about a question that is not within the skill and experience of the court; encourage the early identification of questions that need to be answered by an expert; and encourage disclosure of full and frank information between the parties, the court and any expert instructed.



It will not apply to cases issued before 1 April 2008 but, in such a case, the court may direct that the guidance will apply either wholly or in part. It applies to all experts who are or have been instructed to give or prepare evidence for the purpose of family proceedings relating to children in a court in England and Wales, and it will cover placement and adoption proceedings, or family proceedings held in private which:



- relate to the exercise of the inherent jurisdiction of the High Court with respect to children;

- are brought under the Children Act 1989 in any family court; or

- are brought in the High Court and county courts and 'otherwise relate wholly or mainly to the maintenance or upbringing of a minor'.



The guidance, set out over 21 pages, is essential reading for practitioners in this field.





McCartney and Mills

There cannot have been in the public arena a judgment more widely read than that of Mr Justice Bennett in McCartney v Mills [2008] EWHC 401 (Fam). It is not intended to revisit the full decision in that case here, but to make reference to some bare facts.



The hearing took place over six days. The marriage lasted six years and there is one child of the family (now four years old). The wife sought compensation for loss of her career opportunity, as she stated that their cohabitation, a matter that was not agreed upon, and subsequent marriage caused her to forego a successful and lucrative career. She placed great weight on the contribution she claimed she had made to the marriage, and asserted the husband's conduct should be taken into account and reflected in her award. She valued her claim at £125 million.



The husband submitted that his case was fundamentally straightforward. He claimed that, because of his enormous pre-marital wealth and the brief duration of the marriage, the wife's claim should be determined by reference to the principle of need alone. Those needs fell, on the husband's case, to be fairly assessed not predominantly by reference to the standard of living during the marriage. The husband also claimed that there was conduct that the court should take into account and asserted that the wife's award should be reduced commensurately. The husband's open offer was £15 million, which took account of his proposed deduction for conduct.



Both parties made it clear that they wanted a clean break, both under the Matrimonial Causes Act 1973 and under the Inheritance (Provision for family independence) Act 1975.



Mr Justice Bennett stated that '... the husband's evidence was, in my judgment, balanced. He expressed himself moderately, though at times with justifiable irritation, if not anger. He was consistent, accurate and honest'. He was, however, less than complimentary about the wife's evidence, describing her as 'a less than impressive witness'.



In making his decision, taking into account each of the matters in section 25(2) of the Matrimonial Causes Act 1973, and the decision in Miller v McFarlane which was summarised by the Court of Appeal in Charman v Charman [2007] EWCA Civ 503 (2007) 1FLR 1246, Mr Justice Bennett said: 'I would highlight paragraph 70, where the Court of Appeal said: 'Thus the principle of need requires consideration of the financial needs, obligations and responsibilities of the parties ...; of the standard of living enjoyed by the family before the breakdown of the marriage ...; of the age of each party ...; and of any physical or mental disability of either of them...'.



Mr Justice Bennett awarded the wife a lump sum of £16.5 million which, together with her own assets of £7.8 million, took her total award to £24.3 million.





McKenzie Friends

Heather Mills parted company with her solicitors in early November 2007, and was assisted at the hearing by three McKenzie Friends: her sister, a solicitor-advocate and an American attorney. The question on most journalists' lips on the release of the judgment was whether, and to what extent, the wife might have achieved a higher award if she had not been a litigant in person.



Arguably, this particular wife did not share many of the attributes of a non-famous litigant in person and, in spite of her specialised McKenzie Friends and advice from former solicitors and counsel, the judge criticised the wife's closing submissions. He also noted that much of her evidence was not just inconsistent and inaccurate, but also less than candid: 'If the wife feels aggrieved by what I propose, she only has herself to blame. If, as she has done, a litigant flagrantly over-eggs the pudding and thus deprives the court of any sensible assistance, then he or she is likely to find that the court takes a robust view and drastically prunes the proposed budget.'





President's guidance: McKenzie Friends

In the light of the growth of litigants in person in all levels of family court, the president issued a guidance on 14 April 2008, which supersedes that of 13 May 2005, and is to be regarded as a reminder that the attendance of a McKenzie Friend will often be of advantage to the court and ensure the litigant in person receives a fair hearing.



The guidance sets out the following issues:



1. A litigant who is not legally represented has the right to have reasonable assistance from a lay person. This will apply even if proceedings relate to a child and are being heard in private;



2. A litigant in person who requires help of a McKenzie Friend should be allowed that help unless the judge is satisfied that fairness and the interests of justice do not require it. The presumption is in favour of permitting a McKenzie adviser;



3. If a McKenzie Friend is required, the litigant in person should be encouraged to make their application as soon as possible and provide the name of the McKenzie Friend;



4. It is thought helpful to the litigant in person and to the court if the identity of the particular McKenzie Friend remains constant throughout the proceedings;



5. Unless the McKenzie Friend behaves improperly, or there is a finding that the McKenzie Friend's continuing presence will impede the efficient administration of justice, the decision to allow their assistance will be final;



6. Schedule 1, Part 1, Article 6 of the Human Rights Act 1998 must be employed when considering any request for the assistance of a McKenzie Friend. The court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request;



7. The litigant in person should not be required to justify his desire to have a McKenzie Friend. In the event of objection, it is for the objecting party to rebut the presumption in favour of permitting the McKenzie Friend to attend;



8. Factors that should not outweigh the presumption in favour of allowing the assistance of a McKenzie Friend include

the following:



(a) the proceedings are confidential and papers contain sensitive information;

(b) the litigant in person appears to be capable of conducting the case without assistance;

(c) the litigant in person is unrepresented through choice;

(d) the objecting party is not represented;

(e) the hearing is a directions hearing or case management hearing;

(f) a proposed McKenzie Friend belongs to an organisation that promotes a particular cause.



9. The proposed McKenzie Friend should not be excluded from the courtroom while the application for assistance is made and the McKenzie Friend should ordinarily be allowed to assist the litigant in person make the application.



10. The proposed McKenzie Friend should produce a short curriculum vitae or other statement setting out their relevant experience, confirming that they have no interest in the outcome of the case and stating they understand the duty of confidentiality.



11. The court may exercise its discretion and refuse to allow a McKenzie Friend to assist the litigant in person. However, the reasons for the decision should be explained carefully and fully both to the litigant in person and the would-be McKenzie Friend. Only the litigant in person can appeal this decision.



12. In care proceedings, the court should consider whether the McKenzie Friend should attend any advocate's meetings as directed by the court and, with regard to cases commenced after 1 April 2008, consider directions in accordance with paragraph 13(2) of the practice direction.



13. The litigant in person is permitted to communicate any information, including filed evidence, relating to the proceedings to the McKenzie Friend for the purposes of obtaining advice or assistance in relation to the proceedings.



14. Legal representatives should ensure that documents are served on the litigant in person in good time to seek assistance regarding their content from the McKenzie Friend in advance of any hearing or advocate's meeting.





Guidance on appointing guardians

On 15 April 2008, the president revoked the guidance that had been issued on 25 February 2005, with immediate effect. From the date of this revocation, an order made in the county court joining a child as a party in private Children Act proceedings and directing the appointment of a guardian under rule 9.5 of the act may be made by any appropriately nominated judge or district judge.



Where the court is considering whether to make an order joining a child as a party to the proceedings under the Children Act 1989, which are not specified proceedings (within the meaning of section 41 of that act) and directing the appointment of a guardian under rule 9.5 of the Family Proceedings Rules 1991, the court must have regard to the provisions of the practice direction on Representation of Children in Family Proceedings issued on 5 April 2004.



The earlier 2005 guidance had been issued as an interim measure in the light of concerns about the impact of the practice direction on representation of children in family proceedings, and made provision for the appointment of a guardian under rule 9.5 by a circuit judge only. On review, the president is satisfied that it is no longer necessary or appropriate to maintain the restrictions provided for by that guidance.