O'Connel & Ors (Children) Rev 2

An unrepresented party in private family proceedings has a strong presumptive entitlement to assistance from a McKenzie friend. The court may refuse assistance only for compelling reasons, which it must explain carefully and fully. The party’s intelligence, familiarity with the papers, the case-management nature of the hearing and the confidentiality of family proceedings are not, by themselves, sufficient reasons.

A court-sanctioned McKenzie friend may ordinarily see the case papers without a separate disclosure order. The litigant and friend must understand that the material is supplied solely for advice and conduct of the proceedings. Wider publication or disclosure remains prohibited without permission. Documents may also be disclosed, with permission, to a public authority having a proper interest in their subject matter.

Three fathers acting in person were engaged in private proceedings concerning residence or contact with their children. In the Southampton and Brighton proceedings, judges refused the proposed assistance of McKenzie friends. In the Principal Registry, a judge permitted a McKenzie friend to attend but allowed him to see only a restricted selection of documents and refused permission for disclosure to the Local Government Ombudsman.

The Court of Appeal heard the cases together to settle family-court practice. The central questions were when an unrepresented litigant may receive assistance from a McKenzie friend in private children proceedings and when confidential information or documents generated by those proceedings may be disclosed to the friend or other appropriate recipients.

1. All three appeals were allowed. The refusals of McKenzie-friend assistance in the Southampton and Brighton cases were plainly wrong. The restricted disclosure order in the Principal Registry was also set aside. The father there was permitted to disclose the papers to his McKenzie friend and to the Local Government Ombudsman.

2. The purpose of a McKenzie friend is to further the interests of justice, promote a level playing field and secure a fair hearing. Article 6 of the European Convention on Human Rights is engaged. There is a very strong presumption in favour of assistance, including in private children proceedings. Refusal requires compelling reasons, explained carefully and fully to the litigant and proposed friend.

3. A litigant’s intelligence, command of the facts or ability to manage documents does not rebut the presumption. Nor does the fact that the hearing concerns directions or case management. Confidentiality and sensitive family material do not, without more, justify refusal. The presence of a McKenzie friend does not admit the public or remove the proceedings’ confidentiality.

4. The proposed friend should ordinarily be present when the application for assistance is considered. Early determination is desirable, and continuity of assistance should be encouraged. A short curriculum vitae or statement confirming the friend’s independence, understanding of the role and appreciation of confidentiality may assist the court.

5. Section 62 of the Children Act 2004 relaxed, but did not remove, the statutory protection of information generated in private family proceedings. A court-sanctioned McKenzie friend is not the public at large or a section of it. The litigant may therefore show the friend the case papers for advice and effective presentation. Both must assure the court that the material will be used only for the proceedings. A formal undertaking and a separate disclosure order are ordinarily unnecessary. Wider dissemination without permission may constitute contempt.

6. Before obtaining the court’s agreement to a particular friend, a litigant may show papers to a prospective adviser for the purpose of obtaining advice, provided the recipient understands the restriction on wider dissemination. Permission may also be given for disclosure to a public authority with a proper interest and an appropriate statutory purpose. The initiative need not come from that authority.

7. Litigants in person are entitled to a fair hearing and judicial courtesy. Judges must remain calm and courteous, particularly where an unrepresented litigant is difficult, anxious or upset.

1. Court of Appeal (Civil Division): The three appeals were heard together. The court allowed each appeal, set aside the refusals or restrictions below and gave guidance governing McKenzie friends and disclosure in private family proceedings: [2005] EWCA Civ 759.

2. Southampton County Court: His Honour Judge Milligan refused Mr O’Connell’s application for a McKenzie friend. The Court of Appeal also directed that his application under section 8 of the Children Act 1989 be placed before the Family Division Liaison Judge for directions and allocation away from Judge Milligan.

3. Brighton County Court: District Judge Gamba refused Mr Watson a McKenzie friend at a directions hearing. Her Honour Judge Norrie upheld that refusal on appeal. Both refusals were set aside.

4. Principal Registry of the Family Division: His Honour Judge Cook allowed a McKenzie friend to attend but restricted the documents which could be disclosed and did not permit disclosure to the Local Government Ombudsman. Those restrictions were set aside.