IN THE MATTER OF H (A CHILD) [2001] EWCA Civ 1444

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BASILDON COUNTY COURT
(His Honour Judge Worsley)
[2001] EWCA Civ 1444Case No B1/2001/2073Venue Royal Courts of Justice, Strand, London WC2, Wednesday, 26th September 2001
Between
IN THE MATTER OF H (A CHILD)
Before
Lord Justice ThorpeLord Justice KeeneThe Appellant appeared in person.MISS D TOUSSAINT (Instructed by Lillywhite Williams & Co, Elliott House, Green Lane, Dagenham, Essex, RM8 1AA)appeared on behalf of the Respondent.Date 26 September 2001
[1]Wednesday, 26th September 2001 LORD JUSTICE THORPE: This is Mr H's application for permission with appeal to follow if permission granted.[2]The issue is small and procedural. Manifestly, Mr H has an arguable case and we grant permission. The question that we have to decide is whether His Honour Judge Worsley was right to deny Mr H a McKenzie friend, in the shape of Dr Pelling, for the purposes of a contested contact hearing in the Basildon County Court fixed for the day after tomorrow.[3]The hearing before Judge Worsley was preceded by a hearing in front of Her Honour Judge Ludlow in the Chelmsford County Court on 19th July. It was, seemingly, a directions hearing, setting up the substantive hearing for Friday; but on that day Judge Ludlow refused Mr H's application to be assisted in court by Dr Pelling as his McKenzie friend. That order was not appealed, so we have not seen her judgment. It may be that she refused Mr H a McKenzie friend on that occasion simply because the issues were simple issues of direction and there was nothing of any great significance in play on that day.[4]However, seemingly, Mr H was fearful that at the final hearing he would find himself refused Dr Pelling's assistance and would therefore be exposed to the vital final hearing without aid. Accordingly, he sought a listing of an application to have the assistance of Dr Pelling, and that was afforded to him on 12th September. Judge Worsley refused his application for Dr Pelling and refused him permission to appeal and refused a stay of the hearing on 28th September. The judge's reasons for refusing permission were subsequently reduced to writing. He said that his decision was discretionary, based on the facts and family issues in the case, his observation of, and listening to, Mr H and Dr Pelling during the application and his view that with Mr H on his own the hearing would be fairer, less adversarial and legalistic and in the greater interests of justice from all points of view.[5]The application for permission to this court was lodged in time, namely on 24th September, but towards the boundary of the 14 days allowed and putting this court under some pressure to adjudicate before the fixture in the county court. So in circumstances such as these, should they recur, it would be helpful if the application to this court for permission were filed more promptly to give this court a fairer opportunity of setting up an on notice hearing.[6]This morning Mr H has appeared, with Dr Pelling at his side, and has really done little more than reiterate his sense of vulnerability at the prospect of this vital hearing the day after tomorrow when he risks to be on his own. He says that he feels inadequate and he finds these hearings make him very nervous.[7]Miss Toussaint, who represents the respondent in the proceedings, has entered a spirited defence of the judge. She says that this is a discretionary decision, fully reasoned, and the judge was more than justified in refusing the application given the heated exchanges before him on 12th, which were prompted, or heavily contributed to, by Dr Pelling.[8]In fairness to the judge we do not have a transcript of his judgment. All we have is a note taken by Miss Toussaint, which is very far from being a verbatim record. It allows us to see the drift of the judge's reasoning but not a lot more than that. It certainly confirms that the judge founded himself on his impression of Dr Pelling formed during the course of that hearing.[9]I only add that when judgment was delivered against Mr H, he then asked whether a Mr Linnecar might sit beside him on 28th September. The note taken by Miss Toussaint then reads only this:
"I refuse that application."
[10]So I am left in some doubt as to why the judge seemingly summarily dismissed the alternative and fall-back application, unless perhaps he felt that it was a ploy by Dr Pelling to put some associate or nominee in his place.[11]Of course I recognise the danger of interfering too readily with discretionary decisions of circuit judges, particularly on procedural matters. On the other hand, I have very great anxiety at the outcome produced by the judge's discretionary conclusion. Having seen and heard Mr H this morning, I readily understand his sense of vulnerability in the face of contested legal proceedings. It is very important in family proceedings that litigants in person ranged up against solicitors and counsel should have the assistance that they think appropriate, particularly if it is going to contribute to their sense of confidence in the proceedings. So whilst I recognise the judge's right to exclude a particular McKenzie friend for good reason, it seems to me that the presumption in favour of permitting a McKenzie friend is a strong one.[12]Dr Pelling is well-known to this court. He is an active campaigner for father's rights. He has strong views on the evolution of family law, family policy and family practice. I myself have quite extensive experience of Dr Pelling in this court acting as a McKenzie friend and (although in a sense irrelevant to our conclusion today) I record that I have never seen Dr Pelling act other than in an entirely helpful way both to the person he is assisting and to the court itself. Judge Worsley, we are told by Miss Toussaint, had no previous experience of Dr Pelling and may or may not have known of his work in urging on politicians and policy makers changes in our family justice system. He seems to have founded himself entirely on the court experience on the 12th. He has been critical of Dr Pelling on that occasion for being too adversarial and too legalistic. In the application to this court and in the accompanying skeleton argument, Mr H writes (or perhaps Dr Pelling writes on his behalf):
"Neither the Applicant nor Dr Pelling make any apology for conducting the case on 12 September in an adversarial and legalistic manner. That is because the issue WAS an adversarial and legalistic one. The Respondent strongly opposed Mr H having a McKenzie Friend and equally strongly Mr H argued for one."
[13]That seems to me to be a fair point. The issue whether or not Mr H was entitled to a McKenzie assistant was to be decided in accordance with the practice of the court as determined by a series of decisions in this court. The argument in the court below revolved round the application of those decisions to the facts of this case. Necessarily, therefore, it was a legalistic argument.[14]It is, in my experience, quite unusual for a respondent to oppose an application for McKenzie assistance, and to that extent, therefore, perhaps the respondent herself contributed to adversariality. The question really for the judge was whether that same balance of adversariality and legalistic submission would necessarily characterise the substantive hearing where the issues were all within the range of fact and discretion. Obviously, in deciding whether there should be contact and, if so, how much and, further, what should be its details, all the concentration is on practicality and good sense within a judicial discretion. So it seems to me that the inference that adversariality and legalism on the 12th would necessarily be repeated on the 28th is not necessarily well-founded.[15]Accordingly, not without some hesitation (because I recognise it is an interference with the discretion of a circuit judge in a procedural field), I would in this instance feel justified in concluding that Mr H should have been allowed Dr Pelling as his McKenzie friend on the 28th. I would accordingly propose to reverse that part of the judge's order of 12th September and instead simply substitute for the first paragraph of the order as drawn:
"The application for Dr Pelling to assist Mr H as his McKenzie friend at the hearing on 28th September be granted."

LORD JUSTICE KEENE: I agree.

Order

Appeal allowed with costs assessed at nil. We will adjourn to the costs judge the detailed assessment of the costs of the appellant, which are payable out of the Community Legal Service fund. Detailed assessment of the Respondent's costs.

Cited in 1 later judgment