J (A Child)

In care proceedings, a parent has no automatic right to a further assessment of parenting capacity by an independent social worker. The court must ask whether the proposed assessment would assist it in reaching the right conclusion about the child. The decision is a case-management discretion, and an appellate court should not interfere unless it was plainly wrong or involved an error of law. A court may grant a non-lawyer McKenzie friend rights of audience in appropriate circumstances. The litigant’s wishes, due process, merits-based representation and efficient conduct may be relevant, while the judge remains in control of the court.

The mother appealed from an order made by HHJ Cardinal in the Birmingham County Court on 28 August 2009 in care proceedings concerning her youngest child. The appeal concerned whether an independent social worker should conduct a further assessment of her capacity to care for the child and whether Mrs Haines, a McKenzie friend, should have rights of audience at the final hearing. The judge had allowed Mrs Haines to address the assessment application but refused representation at the final hearing. The central issues were whether the discretion concerning further assessment had been properly exercised and whether the restriction on representation was justified.

1. Further assessment. The appeal was dismissed on the refusal to order another assessment by an independent social worker. The question was child-focused. It was not whether the mother had a right to a further assessment, but whether the assessment would assist the judge in reaching the right conclusion concerning the child.
2. The judge had considered the unsuccessful residential assessment at Appledore, numerous earlier assessments, psychological and psychiatric evidence, and the guardian’s position. His conclusion that a further assessment was unlikely to add materially to the existing evidence was a proper exercise of discretion. The Court of Appeal could identify neither a plainly wrong decision nor an error of law. The issue remained one for determination at the final hearing on the evidence.
3. McKenzie friend. The appeal was allowed on Mrs Haines’s rights of audience. The court had power, in appropriate circumstances, to permit a non-lawyer to represent a litigant. The mother wished Mrs Haines to represent her on the merits, and Mrs Haines had assured the court that she was not pursuing a political or collateral purpose. It was illogical to permit her to advocate the assessment application while refusing her permission to represent the mother at the substantive hearing. Due process and the mother’s opportunity to be represented as she wished supported granting rights of audience. The judge remained in control of his court and could require a co-operative attitude.
4. Lord Justice Moore-Bick agreed with the judgment. The appeal was therefore allowed in part.

1. Court of Appeal (Civil Division) — Appeal from an order made by HHJ Cardinal in the Birmingham County Court on 28 August 2009. The appeal was allowed in part: the refusal of a further independent social worker assessment was upheld, but Mrs Haines was granted rights of audience at the final hearing. [2009] EWCA Civ 1210.