England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT
(HHJ ROGERS)

		Royal Courts of Justice Strand London WC2A 2LL
		Tuesday, 14 May 2013

Lord Justice McFarlane:

1. This is an application for permission to appeal made by the mother in the course of ongoing care proceedings in relation her two sons. Nothing that has been said in the court today or that I may say in the course of this judgment is to lead to any publication which identifies either of the two children or the mother as being connected with pending Children Act proceedings. An order from this court will be issued in those terms.
2. The children, both boys, are L, who was born on 4 June 2004 and therefore is now fast approaching his 9th birthday, and R, born on 3 July 2009 and therefore some 3¾ years of age. The proceedings commenced following events on 27 May 2011 when R was seen to have some signs of physical injury, leading to the local authority being concerned on medical advice that he may have sustained non-accidental injury. Since that date, neither of the boys has been in the care of the mother. Initially interim care orders were in place and they were in foster care, but for a short time they were placed with grandparents, but that was not an arrangement that was to be sustained and therefore now they remain in foster care.
3. The case proceeded in the Lincoln County Court before District Judge Maw. On 9 December 2011 District Judge Maw conducted a finding of fact hearing and on that date gave his conclusions, which were to the effect that R had indeed sustained a physical injury, namely a tear to his frenulum, which was a result, on the balance of probability, of non-accidental injury inflicted upon him by his mother. The judge heard other evidence and concluded in general terms that it may well have been the case that the mother, under stress, had lost patience with her child.
4. The proceedings were adjourned for consideration of the ultimate plan as to placement for the boys. The principal issue before the court at this stage was whether they would be returned to their mother's care, either on a freestanding basis or on some basis where she was supervised or assisted by other members of her family.
5. The second stage of the proceedings were concluded, again before District Judge Maw, on 15 June 2012, and on that occasion the judge ruled out returning either boy to the care of the mother on any of the various bases that were put before the court. The judge therefore made a final care order, and any further applications in relation to the children have proceeded in the context that the final care order has been made and against the background of the findings I have described.
6. It is apparent from the little material that this court has had available to it that, following those decisions, the mother decided to seek publicity for the case, and that in turn led to the local authority applying for injunctions to restrict publicity, those being granted by HHJ Swindells on 2 October 2012.
7. The additional issues relating to the children then came on for hearing before a circuit judge, HHJ Rogers. He was in the main dealing by then with a local authority application for a placement for adoption order and also the mother's application to discharge the care orders. At a hearing before Judge Rogers on 12 February 2012, the case was adjourned. The local authority informed this court that was partly because the mother indicated that she wished to seek fresh legal representation, she having been represented by lawyers throughout the proceedings up until the making of the care order, but having parted company with her lawyers thereafter and when she had acted as a litigant in person.
8. The local authority assert that, prior to the hearing on 12 November, namely on 8 November, they had served the mother with an application seeking permission to terminate her contact with the boys under section 34(4) of the Children Act 1989. They claimed to have sent the application to her address together with a lengthy statement in support of that application, which is dated 5 November. This morning we have been handed a copy of that statement.
9. It is the mother's case before this court that she did not receive that material. The mother seeks to challenge the decisions that were later to be made about contact, but by reason of the developments that took place in this court this morning and after the short adjournment, a pragmatic solution to that part of the case has been achieved, and it is not necessary for me to dwell upon it in this present judgment.
10. After the hearing on 12 November, the mother had filed with the Lincoln County Court a notice of application for permission to appeal the original decisions by District Judge Maw, namely 15 June 2012 and, by implication, the fact-finding on 9 December the previous year. Thus it was, when the case came back for hearing before Judge Rogers on 11 January, the court had a substantial list of applications to consider. There were the ongoing applications in relation to the case itself, but also the mother's application for permission to appeal the determinations made by District Judge Maw.
11. On the morning of the hearing, the mother was attended by a lady, Mrs M, who the mother wished to invite to act as her McKenzie friend for the course of the hearing on that day. Prior to going into court the mother and Mrs M circulated a statement made by Mrs M, which runs to some six or seven pages and which is supported by a clip of about 40 or more pages of other documentation. Having seen that material, the local authority decided that they did not agree to Mrs M acting as McKenzie friend. Mrs M's statement was seen by the judge. He then conducted a hearing at which he heard from the mother, acting as a litigant in person alone in a courtroom without Mrs M being present, to determine whether or not Mrs M would be permitted to act as the mother's McKenzie friend. Mrs M was not in the court because the judge had directed that she should not come into the courtroom. Part of the mother's presentation before the judge was to invite the judge to allow Mrs M to come into court so that the judge could ask her directly about matters and hear from her own mouth what it was that she wished to say in response. The judge, I am told by the mother in these proceedings and I accept, refused to permit Mrs M to come in.
12. At the conclusion of what must have been a fairly short hearing, the judge gave a judgment in which he refused the mother permission to have Mrs M in court as her McKenzie friend. Matters then proceeded during the rest of the morning and early afternoon on the basis that there were a number of adjournments, at the conclusion of which the mother indicated that if she was not permitted to have Mrs M as her McKenzie friend, she considered that her Article 6 rights to a fair trial had been fundamentally compromised and that she was not prepared to take part in the proceedings for the remainder of the day. She therefore absented herself from the courtroom. The judge went on to consider the substantive applications, and we have seen a short judgment that he gave in which he considered the detail of the documents that the mother had put in in support of her proposed appeal, but, for reasons he gives in that judgment, he refused her permission to appeal. It follows that the mother has no ability to bring the substantive question as to whether or not she has a viable appeal against Judge Maw's decisions to this appellate level, there having been no appeal on those issues before the Circuit Judge.
13. The single issue, as it is referred to in the mother's notice of appeal which was filed in this court on 18 February 2013, relates to the refusal to permit Mrs M to act as the mother's McKenzie friend. The case came before me for an oral hearing on the mother's application for permission on 19 April. On that occasion, all I had and all that the mother had available in the court bundle were her skeleton argument and her grounds of appeal and the second judgment, namely the one that the judge gave on the application for permission to appeal Judge Maw's orders. The missing part of the jigsaw was the judgment refusing Mrs M permission to act as a McKenzie friend. It was therefore not possible to move matters on to a conclusion on that occasion, and I was sufficiently concerned by what I had read in the paperwork that the mother had put in to set this matter down for what would be potentially a full appeal hearing before three judges of the court.
14. It is important, particularly in these current times where legal aid is being withdrawn from significant areas of the family justice system, for the courts to look keenly at requests for assistance by McKenzie friends and to apply the extant guidance and case-law which encourages courts to permit litigants in person to have a McKenzie friend to assist them. It is important that that guidance is given its full weight in any decision-making process.
15. Matters have moved on, and two significant documents are now available. The first is the judgment that the judge gave in refusing the mother permission to have Mrs M acting as her McKenzie friend and the second is the statement that Mrs M had prepared and which was circulated on the morning of the hearing. I propose to summarise that statement, although the summary will not do it justice. It is, to my eyes, a very striking document, of a character that I have not seen before, put in by a person who is putting themselves forward to act as a McKenzie friend to assist a litigant and to assist a court. The statement is one which purports to be a witness statement. It concludes with these words, "I confirm this above statement is true to the best of my knowledge", and in it Mrs M from its commencing words indicates that she has had contact with many parents in the area of this local authority and that she has found matters which cause her deep concern as to the pattern of behaviour of the local authority. She goes on to indicate that she has permission from a number of parents to highlight the cases that she has heard about, which to her eyes indicate the pattern that she has described. She then goes on in detail to make substantive points about those individual cases.
16. After some two or three pages, Mrs M's statement then goes on to deal with the particular case before the court, namely that of this mother, and she then seeks to make comparisons between this present case and the other cases to which she has made reference. In the course of the statement, Mrs M in terms indicates that she intends to enlarge upon these matters when she gives her "evidence" to the court. The clear implication of this statement is that Mrs M intends, if she is permitted to do so, to present an evidential case in the course of the current proceedings.
17. The clip of documents which are attached to Mrs M's statement include an extract from what seems to be a social work statement in another case. The copy we have, which runs from internal page 5 to internal page 26 of whatever that document was, has been redacted in the sense that any identification material as to the name or age or location of the child or family members has been struck out with a thick black pen, but we are told that the redaction is of recent origin and the document in its unredacted form was the one that was placed before the court and circulated.
18. The clip of documents then goes on to include witness statements and other material including a 70-paragraph statement from a lady who seems to have no connection with the proceedings, analysing District Judge Maw's judgment and making detailed points about it. There is other material of similar purport within part of this clip. It was that document that the local authority read and was seemingly concerned about, and it was that document which HHJ Rogers had read before he came into court to deal with the McKenzie friend application.
19. The second key document that we now have is the judge's judgment on this point. It is a short judgment. He rehearses the background to the matter and in particular draws attention to the fact that there had already been breaches of the confidentiality which attaches to these proceedings of such a level as to justify the granting of the injunctions by HHJ Swindells to which I have made reference. In passing, it is important to note that, although Mrs M indicated that she had the permission of the various parents in the various cases to which she sought to make reference so that she was enabled, she says, to disclose the material, the confidentiality which attaches to material in Children Act proceedings is not within the gift of any one of the parties to waive. It is confidentiality which attaches to the proceedings themselves and is owned, as it were, by the court. Judge Rogers was therefore entitled to be particularly concerned about the background of this matter, even without having seen Mrs M's statement.
20. In relation to Mrs M's statement, he summarises the position in two paragraphs which I propose to read out at this stage.

"5. [The mother] says that she would do no more than act as a normal McKenzie friend. The other parties are worried about that proposition. I do not accept it. I am left in a very difficult position because I recognise how difficult it is for this mother. I recognise that in the normal course of events an application for a McKenzie friend should be sympathetically considered, but I have to say that I accept the reservations made. This individual from all that I have seen is on the face of it wholly inappropriate to be a McKenzie friend. She is obviously an active campaigner. She obviously has intimate knowledge of this case, and indeed it is said wants to give evidence on behalf of the mother, although I do not know quite what evidence she could possibly give other than her own general opinion about the process.

6. But most importantly, I am gravely concerned, given the background also of problems about confidentiality, that if this individual is allowed to sit through and listen to the whole of these proceedings, that she will not respect the confidentiality of the court and will use it as more material as part of her overall more general agenda of campaigning. I am afraid this is not theoretical, this is real, because the information given by her demonstrates precisely her preparedness to do that. I am not prepared to take the risk in this case. If [the mother] could suggest someone else, I would consider it, but I am not sure there is anybody else available to undertake the role and obviously we are only listed for one day and so the moment is lost."

He refused the application.

21. Initially, in preparing her grounds of appeal, the mother sought to put her challenge to Judge Rogers' decision on a general and readily predictable basis. She refers to the guidance and previous case-law, and underlines the importance of courts permitting litigants to be assisted by McKenzie friends in these proceedings. More specifically, she complains about Mrs M not being present in court during the stages of the decision-making process about her involvement and she specifically relates that to individual matters in the guidance. It is not necessary for me in the course of this short judgment to spell out that guidance in any detail. It is largely found in two places. The first is in the decision of this court In the matter of the children of Mr O'Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759 in which clear guidance was given by Thorpe and Wall LJJ as to the presumption in favour of allowing a litigant to have a McKenzie friend and the stress that those two judges give to the very strong nature of that presumption.
22. The second source of guidance is in the Practice Guidance issued in its current form on 12 July 2010 by the then Master of the Rolls and the then President of the Family Division, which sets out in detail, step by step, as it were, the approach of the court.
23. In the present case, the hearing of the appeal today has permitted the mother and the court to focus in on the merits of the case as it can now be seen in the light of Mrs M's statement. The mother herself has become much more acquainted with the approach to McKenzie friends having had time to read the guidance in the preparation for today's hearing. Stepping back from the grounds of appeal that she initially put before court, she says, quite rightly and candidly and impressively, that she is able to understand that Mrs M's statement was a cause for the utmost concern by the local authority and the judge. The mother therefore focuses her challenge not on the generality of the judge's approach, but on the singular unfairness, as she sees it, of the refusal of the judge to permit Mrs M even to be in the courtroom whilst the issue was decided. As a result, the mother complains she was not afforded a fair trial by the judge and was really in a position where it was inevitable that she would have to absent herself from the remainder of the day's hearings because she, as a litigant in person, was unable to contemplate dealing with the plethora of applications that were before the court.
24. So what then is the court's responsibility in terms of having the McKenzie friend in the courtroom when these matters are dealt with? There is a strong presumption that the litigant will have the assistance of the McKenzie friend beside them when making the application. Paragraph 8 of the practice guidance is in these terms:

"When considering whether to circumscribe the right to assistance or refuse a [McKenzie friend] permission to attend the right to a fair trial is engaged. The matter should be considered carefully. The litigant should be given a reasonable opportunity to argue the point. The proposed [McKenzie friend] should not be excluded from that hearing and should normally be allowed to help the litigant."

It is that part of the guidance to which the mother rightly makes reference.

25. I have already stressed the importance of courts being very loath to refuse litigants in person such assistance as they feel they may need, particularly in cases such as this where the issues could not be more important for the mother and the children. But even approaching matters on that basis, I am bound to say I can find no fault with HHJ Rogers dealing with the case as he did on this day. I take that view because of the very stark terms of Mrs M's statement. It is an astonishing document. It is a document prepared by an individual who has embarked upon a campaign in relation to the family justice system and the local authority's role in it in that locality. It demonstrates a complete disregard for the rules of confidentiality and an ability to pluck pieces of information from one case or another for the purpose of putting forward the argument that she seeks to do in that statement. It displays a total lack of understanding of the role of a McKenzie friend, which, whilst no doubt intended to be a "supporter" in terms of having someone on the litigant in person's side, is in terms of the presentation in court intended to be of a neutral nature. A McKenzie friend is not to be an advocate campaigning for a particular cause. The statement plainly indicates that its author, Mrs M, had a personal interest in the litigation and its impact more generally for other cases.
26. Further, the statement shows, as I have already described, that Mrs M was not content with considering her role as being that of McKenzie friend, but fully anticipated being able to give evidence to the court in order to enlarge upon points that she sought to make.
27. On that basis, it is my view that Mrs M's ability to be appointed to the role of McKenzie friend in this case had been comprehensively and fundamentally compromised by the writing of that statement and its circulation. To have her in the courtroom would not have altered the view that the judge had already formed of her ability to discharge the role that would be expected of her.
28. Whilst it plainly was an extreme step to depart from the guidance and proceed in her absence, in my view the judge was entirely within his discretion in acting as he did, taking the view that to have the lady in the room, even for that comparatively short time, might compromise the confidentiality of the proceedings.
29. Looking at the matter now with the information that I have today that I have described, I am very clear that there is no prospect of a successful appeal against Judge Rogers' determination in relation to the McKenzie friend issue, and I would therefore refuse permission to appeal.

Lord Justice Fulford:

30. I agree.

Lady Justice Black:

31. I also agree.
32. Order: Application refused