F (Children), Re

A litigant in person has a strong presumption in favour of assistance from a McKenzie friend. The court must give fair-trial considerations careful weight and should normally allow the proposed friend to attend and assist.

The presumption is not absolute. Assistance may be refused where the proposed person is an advocate or campaigner, has a personal interest, intends to give evidence, or presents a serious risk to confidentiality. In an exceptional case, the proposed friend may be excluded while the application is decided if the material already shows that the role is fundamentally compromised.

The mother was a litigant in person in ongoing care proceedings concerning her two sons. District Judge Maw had made findings concerning injury to one child and later made final care orders. Before HHJ Rogers, the local authority sought an adoption placement and the mother sought to discharge the care orders.

The mother applied for Mrs M to act as her McKenzie friend. Having read Mrs M’s extensive statement and supporting material, HHJ Rogers excluded her from the courtroom while the application was considered and refused permission for her to act. The judge later refused the mother permission to appeal District Judge Maw’s substantive decisions. The issue before the Court of Appeal was whether the procedure concerning the proposed McKenzie friend was unfair or outside the judge’s discretion.

1. Application refused. Lord Justice McFarlane delivered the judgment, with Lord Justice Fulford and Lady Justice Black agreeing. There was no prospect of a successful appeal against HHJ Rogers’s decision.
2. There is a strong presumption that a litigant in person should receive assistance from a McKenzie friend. Courts should be very slow to refuse such assistance, particularly where the proceedings concern matters of fundamental importance. The right to a fair trial is engaged, and the litigant should have a reasonable opportunity to address the issue.
3. The proposed McKenzie friend’s role is that of a neutral supporter. It does not extend to campaigning advocacy or giving evidence. The court may consider the proposed person’s conduct, interests, understanding of the role and likely effect on the proceedings.
4. Confidentiality attaching to care proceedings is not within the gift of an individual party to waive. It attaches to the proceedings and may require protection by the court.
5. Mrs M’s statement showed that she was an active campaigner, had a personal interest in the wider issues, intended to present an evidential case, and had disregarded confidentiality. Her ability to perform the role had therefore been comprehensively compromised. Her presence would not have altered the judge’s conclusion and created a real confidentiality risk.
6. Excluding the proposed McKenzie friend from the hearing was an extreme departure from the usual guidance, but HHJ Rogers was entitled to exercise his discretion in that way on the information before him. An order was also directed to prevent publication identifying the mother or children in connection with the pending proceedings.

• Court of Appeal (Civil Division): The mother’s application for permission to appeal against HHJ Rogers’s decision concerning the proposed McKenzie friend was refused: [2013] EWCA Civ 726.
• Lincoln County Court (HHJ Rogers): Refused permission for Mrs M to act as the mother’s McKenzie friend and subsequently refused permission to appeal District Judge Maw’s substantive decisions.
• Lincoln County Court (District Judge Maw): Made findings of fact concerning injury to one child and later made final care orders.