H (Children), Re

Appeals against case-management decisions are not automatically unnecessary or doomed to fail. Where there is a good reason to challenge such a decision, the appeal should be brought swiftly.

An appellate court should interfere with a discretionary case-management order only where it is plainly wrong, including through an error of law or an inappropriate exercise of discretion. Trial judges have broad control over the evidence to be called. Brief reasons may be adequate where they sufficiently explain the decision. A McKenzie friend has no general right to conduct litigation or address the court, and any exceptional grant of such rights requires good reason.

The father appealed from an order made by HHJ Carr QC in the Sheffield County Court on 2 November 2011. The order excluded his proposed McKenzie friend, fixed the final hearing, limited the witnesses and statements, and required leave for further evidence.

Ward LJ granted permission to appeal in relation to the exclusion of the McKenzie friend, refused permission concerning the hearing date, and adjourned the applications concerning witnesses and statements. The central issues were whether the judge had exceeded her discretion in controlling the evidence and whether she was entitled to exclude the McKenzie friend.

1. Disposition. Permission to appeal against paragraphs 4 and 6 of the order was refused. The appeal concerning paragraph 1 was dismissed.
2. Case-management appeals are not barred as a category, but any appeal brought for good reason should be mounted swiftly. The delay in this case had caused the listed hearing to be vacated, but did not justify appellate intervention.
3. The order was an exercise of judicial discretion. Applying G v G (Minors: Custody Appeal) [1985] 1 WLR 647, the appellate court would interfere only if the order was plainly wrong. That could result from an error of law or an inappropriate exercise of discretion.
4. The trial judge had a broad discretion over the evidence, including whether oral evidence should be called at all, as recognised in Re B (A Minor) [1992] 2 FLR 1. Character witnesses were often of limited assistance because they might be partisan, could not replace the judge’s assessment, and rarely gave direct evidence on the issues to be decided. The directions requiring leave before further witnesses or statements could be introduced did not finally close the door and disclosed no reason for intervention.
5. As to the McKenzie friend, the judge had considered the papers, the evidence, equality of arms, the guidance, and the conduct of the proposed assistant. Even leaving aside the finding that the mother was likely to have been intimidated, there were adequate grounds for concluding that the assistant had crossed from supporting the litigant into conducting litigation. The McKenzie Friends (Civil and Family Courts) Practice Guidance made clear that such assistants had no general right of audience or right to conduct litigation. Any grant to a lay person had to be considered case by case, required good reason, and could not be made merely for convenience.
6. The judge’s reasons were perfunctory but sufficient. Reasons for a case-management decision need not be elaborate if stated briefly and clearly. Arden LJ made the same order for those reasons, and Sullivan LJ agreed.

• Court of Appeal (Civil Division) On 20 June 2012, the court refused permission to appeal paragraphs 4 and 6 of the order and dismissed the appeal concerning paragraph 1.
• Sheffield County Court HHJ Carr QC made the case-management order on 2 November 2011, excluding the proposed McKenzie friend and controlling the evidence and statements for the final hearing.