H (A Child), Re

A litigant in person in family proceedings should ordinarily be permitted the assistance of a McKenzie friend, particularly where that assistance will give the litigant confidence in contested proceedings. The court retains power to exclude a particular proposed McKenzie friend for good reason.

The exercise of that discretion must address the proposed role at the substantive hearing. A McKenzie friend’s adversarial or legalistic conduct while contesting the separate legal question whether assistance should be allowed does not, without more, justify an inference that the substantive hearing will be conducted in the same way.

The appellant, a father acting in person in contact proceedings, sought to have Dr Pelling assist him as a McKenzie friend at a contested contact hearing in the Basildon County Court. His Honour Judge Worsley refused the application on 12 September 2001. He considered that the hearing would be fairer, less adversarial and less legalistic if the father appeared alone.

The father sought permission to appeal shortly before the substantive hearing. The Court of Appeal granted permission and determined whether the county court judge had properly exercised his discretion to refuse the proposed assistance.

1. Appeal allowed. Lord Justice Thorpe, with whom Lord Justice Keene agreed, held that the father should have been permitted to have Dr Pelling as his McKenzie friend at the contact hearing.

2. The court recognised that an appellate court should be slow to interfere with a circuit judge’s discretionary procedural decision. A judge may exclude a particular McKenzie friend where there is good reason to do so. Nevertheless, the starting point in family proceedings is a strong presumption in favour of allowing a litigant in person to have the assistance he considers appropriate, especially when it will reduce his sense of vulnerability and increase confidence in the process.

3. The county court judge had relied on his impression of Dr Pelling during the earlier application. That application concerned the legally contested entitlement to a McKenzie friend. Its adversarial and legalistic character therefore did not warrant an inference that the substantive contact hearing, which concerned practical factual matters and discretion, would be conducted in the same manner.

4. The order of 12 September 2001 was reversed insofar as it refused the father Dr Pelling’s assistance. The substituted order granted the application. The appeal was allowed with costs assessed at nil; the detailed assessment of the appellant’s costs was adjourned to the costs judge, payable from the Community Legal Service fund.

• Court of Appeal (Civil Division) — granted permission and allowed the appeal, reversing the refusal of a McKenzie friend: [2001] EWCA Civ 1444.

• Basildon County Court — on 12 September 2001, His Honour Judge Worsley refused the father’s application for Dr Pelling to assist at the forthcoming contact hearing, refused permission to appeal and refused a stay.

• Chelmsford County Court — on 19 July 2001, Her Honour Judge Ludlow refused a request for Dr Pelling’s assistance at a directions hearing. That order was not appealed.