Recently the Court of Appeal has handed down judgment in two cases where the appellants were fathers, in private law childcare proceedings, relating to the rights of fathers to a fair hearing.

A custom has grown up in the family courts to permit applicants to have Mackenzie friends, in spite of the fact that this usually means that the Mackenzie friend will be permitted to see confidential papers whose publication is in general forbidden by law. These judgments give an indication of the way the Court of Appeal is thinking about the rights of fathers, the conduct of custody and access proceedings, and the role of Mackenzie friends. On the latter point – Mackenzie friends – the judgment in In the matter of the children of Mr O'Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759 sets out the law relating to Mackenzie friends with particular reference to proceedings of this kind. (This was a reserved judgment, to avoid confusion, I note that the judgment In the Matter of O (CHILDREN) [2005] EWCA Civ 573 is a brief extempore judgment on one of the same cases arising from the same hearing.) The single judgment of the court was delivered by Wall LJ (Thorpe LJ was also on the tribunal). The three fathers appeared in person, and they won the right to Mackenzie friends. The second judgment involved two fathers applying in person and without notice before Wall LJ (sitting alone), for leave to appeal. One of the fathers wanted to appeal from the outcome of the fresh hearing which he had won in the first appeal I mentioned. Wall LJ said that it was unusual to give a reserved, written judgment in such a case. The judgment gives him an opportunity to express the view the Court of Appeal takes of the treatment of fathers, and allegations of anti-father bias, in the courts. The case is B (A child) and O (Children) [2006] EWCA Civ 1199.

The rules on Mackenzie friends given in the first of these cases are fairly straightforward. Without attempting a formal report of the case, I summarise the key points which the case decides, and the points which can be gathered from it implicitly: The idea of the Mackenzie friend has in recent years become well accepted. The Court of Appeal thinks they are good thing, and in general facilitate cases. They also help promote a fair trial and equality of arms, and to that extent a litigant in person has, in general, a right to a Mackenzie friend, a right which is strengthened by the Human Rights Act.

The judgment also deals with two earlier Court of Appeal cases which appear to limit the right to a Mackenzie friend, and explains them in a way which minimize their effect. For the first, the most compendious way I can convey all the relevant points is by a direct quotation:

The first in time of the cases in this court arising from an appeal against the refusal of a judge to allow a litigant in person a McKenzie friend in family proceedings relating to children heard in chambers is Re G (Chambers Proceedings: McKenzie friend) which, although reported at [1999] 2 FLR 59, was heard on 10 July 1991. It is also the only case in this court in which a refusal at first instance to permit a McKenzie friend has been upheld in this court. In this instance, this court upheld a decision of Waite J to refuse to allow a party to wardship proceedings to have a McKenzie friend on the basis that the decision as to who was permitted to be present in a chambers matter was one for the judge alone. As Mr. Spon-Smith pointed out, the case was an unusual one in that the proposed McKenzie friend was a solicitor who was to be paid for his services but did not wish to put himself on the record. We think it highly unlikely that the case would be decided the same way in this court today.

The second is the well known case of Dr. Pelling. He had become almost a professional Mackenzie friend, acting skilfully, and sometimes as advocate, in applications by fathers. When refused the right to act as Mackenzie friend on one occasion he applied for judicial review, failed, and failed on appeal. In the present case the Court said that if this had been an appeal by the litigant whom Dr. Pelling wished to assist, rather than a JR application by the Mackenzie friend, Dr. Pelling, himself, it would probably have succeeded.

The court says that there is a strong presumption in favour of permitting a Mackenzie friend. Some courts had worked on the basis that they would permit a Mackenzie friend where the litigant could show he needed that help; and that there is no real point in allowing a Mackenzie friend in a typical directions hearing. That is now the wrong starting point. The judge can refuse a Mackenzie friend but not without a very good reason. It is no longer true that the litigant should have to give reasons in favour of having someone to assist him. If the judge thinks that the Mackenzie friend does, or is likely to, impede a fair or properly conducted trial then he can refuse to permit that particular person to act as Mackenzie friend. But there needs to be evidence that this person is unsuited to the role, the fact that the mother for example strenuously resists the father having a particular person as Mackenzie friend is not on its own enough. Presumably this rules goes for proceedings in public as well as proceedings in private. With proceedings in chambers, of course, the judge must in theory be asked for permission for the Mackenzie friend to be in court, whereas when proceedings are in public, asking the judge might be courteous but not compulsory. In both cases of course the judge has an inherent jurisdiction to throw out the Mackenzie friend which he can exercises if he can give some sound reason why that person should not be present in court.

In family proceedings, where the papers are prima facie not to be published, the Mackenzie friend should also be allowed to read the papers, although theoretically, at least, he should not read confidential papers until an application has been made for him to act as Mackenzie friend, and the court has granted it. The major proviso to this rule being that the Mackenzie friend must remember that he is only allowed to read and use the papers so as to help at the hearings.

In short, courts can now refuse litigants permission to use Mackenzie friends only if they can give very good reasons for refusal. This is even true in children's proceedings, where courts should give Mackenzie friends permission to be present and to read confidential papers in most cases. Courts which have not operated in this way hitherto need to update their practice.

There is another aspect to this appeal. The Court of Appeal make extensive quotations from transcripts of the hearings under appeal, and are ready to criticise any lapse they think the judges make from the highest judicial standards. There is clearly real concern at Court of Appeal level over the accusation that family courts are unfair because secret, which explains this readiness to examine what the transcripts reveal about the behaviour of the judges:

We make no apology for our extensive citations from the transcripts. No doubt all of us have read transcripts of hearings over which we have presided, and winced at the occasional inappropriate remark which we wished we had not made. But the transcript is the only way judicial conduct in family cases can be appraised.

For the purposes of this discussion, we are quite prepared to accept that Mr. O'Connell has all the attributes Judge Milligan found him to have, and that the fact Mr. Watson is not seeing his children is because of his behaviour towards them and his former wife. But none of that justifies discourtesy on the part of the bench, or the denial of a fair hearing to the litigant i question. Indeed, as a general proposition, the more difficult the litigant, the greater the need for judicial courtesy and calm. In the instant cases, however, both Mr. O'Connell and Mr. Watson appear to have behaved entirely properly, and on the clear face of the transcript, neither said anything which was either discourteous or even remotely inappropriate.

The second judgment I mentioned above returns to this theme. The way Wall LJ sets out the stories of the two men who were seeking leave to appeal outlines stories which involve a lot of unhappiness on all sides. Both men are described as being in situations which I would summarise as being deeply enmeshed in long-drawn-out litigation, because they will not give up their fight for better access to their children, which seems to be causing them unhappiness, and in the view of court entails hostility to the mothers, and is as well very distressing for the children. One of the fathers describes himself as being so mentally tortured that his plight is worse than that of the victims of the Nazis. An unfortunate way of putting it, and of course the court rejected that the man's right not to be tortured had not been breached. The other father attacked the judge below in such terms as describing him as a 'clown' (Wall LJ gives a little more detail but clearly not the full picture of the personal attacks on the judge.)

At the end of the judgment there is a section of general observations. It can be read as a contribution to the government consultation on openness in the family courts. On 1 September 2006 the consultation was extended by the opening of an online forum to gather the views of children and young people. That forum and the consultation close at the end of October 2006. The details of the consultation are available from the DCA here: Confidence and confidentiality: Improving transparency and privacy in family courts.

Wall LJ has been an advocate of greater openness in children's cases. He gave one of the judgments in Clayton v Clayton [2006] EWCA Civ 878. This was not about publicity in a children's case while the case was ongoing: here the Court of Appal discontinued, in the interests of free speech, an injunction against a father from telling his story after the case had ended. He said he wanted to discuss what had happened and to make related criticisms of the family justice system. In the case presently under discussion he makes the point, on the other side, that the supposedly secret family courts are exposed to scrutiny by the appeal process. He repeats an extract from a judgment he gave in an earlier case where he defends the family courts against the allegation of anti-father bias, and he says that when fathers are excluded it is sometimes because of their own behaviour. To read Wall LJ's comments, go to the judgment (I repeat the link: B (A child) and O (Children) [2006] EWCA Civ 1199), and scroll down to paragraph 91.

In summary, the Court of Appeal are very insistent that lower courts should be patient, courteous and fair to unrepresented litigants, all the more so where the litigant is an estranged father in a family case held in private. That includes giving the litigant a right to a Mackenzie friend to be present and to read papers, including confidential ones, unless there are very good reasons not to allow a particular person to act as Mackenzie friend. In the light of the right to free speech, privacy rules should be maintained but should be kept to the minimum necessary (see further Clayton, which I mentioned above but have not discussed in detail). Finally, Wall LJ says that the accusation that courts are anti-father is on the whole unfair, and that where fathers are denied access or custody it is often their own fault.

Dr John Birchall - Professional English, Legal English, and Common Law Training