N (A Child), Re

A McKenzie friend has no automatic right of audience. Under section 27(2)(c) of the Courts and Legal Services Act 1990, the court may grant permission where there is good reason, having regard to the statutory objectives and the circumstances as a whole. The exceptional-circumstances test is not universal. It applies principally where the proposed advocate holds himself out as providing advocacy services. Other cases require a fact-sensitive assessment of fairness, the litigant’s circumstances, the representative’s role, the efficient conduct of proceedings and the interests of any child. A judgment may be handed down publicly while statutory anonymity is preserved where identification would materially prejudice the child.

The proceedings concerned a child and included applications under section 8 and under section 15 and Schedule 1 to the Children Act 1989. The mother appeared in person after losing legal representation and was assisted by a family friend, Mr Holden. The father objected to Mr Holden addressing the court, relying on authorities said to require exceptional circumstances.

The court determined the proper approach to granting a McKenzie friend a right of audience and allowed Mr Holden to address the court on a limited issue. The wider application was not determined because the section 8 proceedings concluded by consent. The court also decided whether the parties and child should be identified in a judgment handed down in public.

1. A McKenzie friend has no right of audience merely by acting as such. Section 27(2)(c) of the Courts and Legal Services Act 1990 confers a discretion which must be exercised for good reason, in the light of sections 17(1) and 17(3), and with the court remaining very slow to grant permission.
2. The exceptional-circumstances formulation in D v S (Rights of Audience) [1997] 1 FLR 724 is not a universal statutory threshold. Following Clarkson v Gilbert [2000] 2 FLR 839, the court must consider all the circumstances and ask whether there is good reason, or whether it is just, to permit the proposed representative to speak.
3. The circumstances fall on a spectrum. Exceptional circumstances will generally be required where the proposed advocate holds himself out as providing advocacy services. The position is more flexible for a spouse, partner, relative or informal supporter. Relevant matters include the litigant’s means and ability to present the case, the representative’s role, fairness, the efficient conduct of the proceedings and the interests of any child.
4. The mother demonstrated good reason. The court therefore granted Mr Holden a right of audience for the particular issue argued on 24 July 2008. The wider application was never determined.
5. The judgment was handed down in public, but statutory anonymity under section 97(2) of the Children Act 1989 was preserved. Applying the balancing approach in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, the likely impact of identification on the child outweighed the detriment to public discussion. No order was made under section 97(4). There was no order as to costs.

First-instance judgment. The section 8 proceedings concluded by an agreed consent order before the wider application concerning Mr Holden’s role required determination.