Family Law Hub

H (Children : exclusion of Mackenzie friend) [2017] EWFC B31

Appeal by mother against decision to refuse to allow her chosen McKenzie Friend to participate in proceedings. Appeal dismissed. The judgment contains a useful review of the legal framework surrounding McKenzie Friends in family cases.

  • Case No: CR14P00813

    IN THE EAST LONDON FAMILY COURT

    11, Westferry Circus,

    London

    E14 4HD

    Date: 05/03/2017

    Before :

    HER HONOUR JUDGE CAROL ATKINSON

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    Between :

    Mother (M) (Appellant)

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    Father (F) (Respondent)

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    Mother assisted by her McKenzie Friend, Ms Barnes

    Father, in person.

    Mr Bright, McKenzie Friend, intervening

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    JUDGMENT

    HER HONOUR JUDGE CAROL ATKINSON:

    1. On 2nd November 2015, District Judge Major, sitting in the Family Court at Croydon, made an order excluding from the proceedings the person chosen by the mother in the case to be her McKenzie Friend. The substantive case around which this dispute has raged is an application made by a father (F) for contact to his two girls A and S, aged 11 years and 14 years respectively at the time of the decision. The girls reside with their mother (M). DJ Major also refused an invitation to rectify a recital to an earlier order and refused to transfer the case for hearing to a court more convenient for the mother. Those decisions are also subject to appeal by the mother but without doubt the issue which has taken up most of my time has been in relation to the exclusion of the mother’s chosen McKenzie Friend, a Mr Marcus Bright. Mr Bright intervenes in this appeal, at my invitation, and joins with the mother on this issue.

    2. I have already given my decision: this is my fully reasoned Judgment. As the parties are aware I have refused permission to appeal the order excluding Mr Bright from future involvement with the proceedings.

    3. Nothing in this Judgment is to be taken as intended to undermine the value to the courts of third parties who offer support and assistance to litigants in family proceedings. There are many occasions where the help and support of a McKenzie Friend can greatly assist. That is why the family courts in particular have generally welcomed McKenzie Friends. However, with the withdrawal of public funding there has been a marked increase in the use of ‘professional’ McKenzie Friends, as here, and there is a danger that the boundaries between the regulated and non-regulated representative is becoming blurred. The facts of this case illustrate how significant the impact can be where there is no clear understanding of, or respect for, the limitations on their role by the third party offering non-regulated legal assistance. Meanwhile, the person left to police the non-regulated representative is the Judge with the result that precious and hard pressed judicial time is diverted to matters of third party involvement when the focus should be the children.

    Background

    4. The proceedings have been ongoing for many years but since 2014 have been listed before DJ Kathryn Major sitting in the East London Family Court at Croydon. The family has seen the involvement of three different children’s services departments, CAFCASS and more recently the girls have been made parties to the litigation and are represented by NYAS. The Anna Freud Centre has been involved in an attempt to repair the relationship between father and daughters which was at one time a good one.

    5. The children are now represented by a solicitor. Neither of the parties is entitled to public funding. In the substantive proceedings both parents have largely acted in person. However, M has had the assistance of a McF, Mr Marcus Bright. Mr Bright lives abroad for the most part but runs a company called Maxim Legal and Commercial Ltd. In the very small print at the foot of his company letter heads is the following:

    “We provide support and services to the legal professional, corporations and individuals. We are not solicitors and we are not regulated by the SRA”

    Mr Bright charges for his assistance.

    6. During the course of the proceedings Mr Bright has sought permission to act as a McF. He has never sought permission to conduct litigation on M’s behalf. He has instructed Counsel through direct access on M’s behalf preparing the papers and the Bundles. Unusually, M uses the registered address for Maxim Legal and Commercial Ltd as her address for service and communication and I understand that until I insisted that she should take responsibility for her own[1] papers, Mr Bright stored all the documents relating to this case on his computer and the mother kept nothing herself.

    7. Outside of the court room Mr Bright has communicated on M’s behalf with F, NYAS, the court, and with the various agencies involved with this family such as Social Services departments and the children’s schools. These communications have variously been by letter, by email and by telephone conversation and have been on the basis that he is “acting” or speaking on behalf of M – in other words, he is communicating her wishes and intentions. There is rarely any communication from mother herself.

    8. DJ Major’s involvement with the case began in August 2014. Prior to that DJ Hay heard a fact finding and made a welfare decision that the children should continue to reside with M. The issue of contact remained to be finally resolved. Contact between the children and their father had regressed from direct contact 3 times a week to supervised contact. Tensions were inevitably running high. After the hearing before DJ Hay the children and M moved home. DJ Coonan then dealt with a hearing in July 2014 before the case settled with DJ Major. Throughout these hearings the mother had the assistance of Mr Bright.

    9. At the hearing before DJ Major in November 2014 the children were already represented through NYAS. The mother did not attend that hearing but sent in a note (drafted by her McF) setting out her reasons for not being there and her position. It was at this hearing that the father indicated his objection to the further involvement of Mr Bright in the case. He made no formal written application that I have ever seen but it is clear from the papers that he told the District Judge that in his view Mr Bright was acting outside of the boundaries imposed upon him as a McF. Further, he asserted that the involvement of Mr Bright had been detrimental to the litigation and he sought his exclusion from further involvement.

    10. At the same hearing the Judge discovered that Mr Bright was erroneously on the court record as ‘acting’ (as a solicitor) for the mother and had been treated by some court staff as if he was her solicitor. DJ Major made no final decision on the issue of Mr Bright’s further involvement in the proceedings absent the mother and Mr Bright. However, pending a hearing on that issue, she sought to ensure that there was no mistake as to the role of Mr Bright and her order contained the following recital:

    “AND UPON the court stating that Marcus Bright of Maxim Legal does not act for the Mother, has been on the court record erroneously and does not have the permission of the court to see documents filed in these proceedings and should not be communicating with third parties including the children’s schools about these proceedings”

    11. The matter was next heard, it seems, on 22nd Jan 2015 when M attended represented by Counsel. Her Counsel was instructed through direct access. An issue has been raised by the appellant and Mr Bright during this appeal regarding the issues that the DJ was asked to resolve on 22nd Jan 2015 and so I need to set out in a little more detail what the court recorded as the issues on that and later occasions. The order contained the following:

    “The Mother’s application before the court on 22 January 2015 is that the case be transferred to the family court at Horsham…or Worthing….and that she can appoint Marcus Bright as her Mackenzie friend.” [sic].

    Under Key Issues the transfer of proceedings is mentioned and so too is:

    “Whether the Mother can appoint Marcus Bright as her Mackenzie friend.”[sic].

    12. Those issues were adjourned for a hearing on the first open date after 19th February 2015 and listed for 4 hours. Mr Bright was given permission to file a statement. The order records an invitation to him to give oral evidence. In addition, Mr Bright was invited to annex to his statement:

    “all the written communications to the court, the F, NYAS, and third parties (including the children’s school and Local Authorities exercising social service functions in respect of the children) relating to these proceedings that he has sent since the commencement of proceedings in this case…whether by post or email or communicated by other means.”

    13. On 15th April 2015 Mr Bright wrote to the court to say that he had only just been informed of the hearing by M and so he was in no position to comply with the directions in time for the hearing. He nevertheless filed a detailed statement setting out his involvement in the case but had insufficient time to collate the documents that he was directed to attach to that statement. He indicated that he wished to take part in the proceedings but sought an adjournment. The case was adjourned and re-timetabled to accommodate him.

    14. The case was next listed for hearing on 1st September 2015. Mr Bright did not attend that hearing. As a result the issues of transfer and the appointment of Mr Bright as McF were not dealt with. The order contains the following recital:

    “Upon Mr Bright not attending today’s hearing (despite the hearing having been listed in accordance with his availability) and the court requiring his attendance for the purpose of cross-examination”

    Both M and Mr Bright maintain that there was no basis for this recital and that it is wrong. M seeks permission to appeal it out of time.

    15. The case was again listed for hearing on 2nd November. Mr Bright filed a second statement. He also delivered the communications requested by the DJ in her earlier order in three spiral bound Bundles. These bundles contain correspondence going both ways. Nevertheless they run to over 900 pages. By way of example they contain correspondence between Mr Bright and F (649 pages), the court (80), CAFCASS (51), Surrey Children’s services (87), NYAS (46), the children’s schools (26), the paternal grandmother (24) and even F’s local MP (4).

    16. At the hearing M was represented by direct access Counsel, F was in person and NYAS by a solicitor. Mr Bright was in attendance and ready to give evidence. In fact he was tendered and no questions were asked of him in cross examination so he added nothing to his written evidence. He raises a complaint about that in this appeal, arguing that he has never been given the opportunity to respond to the specific complaints against him relied upon by the Judge in her judgment.

    17. On the issues before her, the Judge made orders refusing to transfer the proceedings and excluding Marcus Bright and/or Maxim Legal from “assisting the mother as a McKenzie Friend with respect to these proceedings”. She also refused to amend the recital contained in the September order. The mother appealed.

    18. The appeal in this matter has proceeded at a snail’s pace. Amongst other things there have been delays as a result of the late service of documents, the M’s wish to secure transcripts of the whole hearing and the need to ensure that Mr Bright was involved and given the opportunity to defend his position against findings which are largely detrimental to him.

    19. I have compounded the delay. After giving my decision I had to reserve the delivery of this Judgment until I had the time to write it. I apologise unreservedly for my part in the delay. Judicial resources in the family justice system are stretched to the limit and I am afraid that I have had to prioritise other cases ahead of completing the full written reasons in this case. In my defence I felt easier knowing that the reasons given here would not interfere with the substantive case in respect of contact still proceeding before DJ Major.

    Legal framework

    20. Appeals are governed by CPR 52. I can summarise the essential points quite shortly:

    a. The hearing of an appeal is almost always limited to a review and not a rehearing [CPR r.52.21(1)]. There is nothing in this case which would cause me to consider that I should proceed in any other way.

    b. I can only interfere with the decision of DJ Major if I am satisfied that it was wrong or unjust because of a serious procedural or other irregularity below. Wrong [CPR r.52.21 (3)(a)] means unsustainable for these purposes.

    c. There is a general requirement for permission to appeal from a decision of the DJ to the CJ which applies here – CPR 52.3.

    d. There is 21 days within which to lodge a Notice of appeal. Any application for permission lodged outside of that time requires permission to extend the time.

    e. The test for granting permission pursuant to CPR 52.3(6) is that permission may only be given where:

    i. the court considers that the appeal would have a real prospect of success; or

    ii. there is some other compelling reason why the appeal should be heard.

    f. ‘Real prospect of success’ means that the prospect of success must be realistic rather than fanciful.

    The decisions subject to appeal

    21. By her Notice of Appeal, the mother appeals three decisions; the recital in the September 2015 order regarding the listing being at the convenience of Mr Bright; the refusal to transfer the proceedings to a court more local to her; and the exclusion of Mr Bright from acting as her MF. M needs permission to appeal all three of those decisions and as she is out of time in relation to the first of those three decisions, she first needs permission to extend the time for appealing that decision.

    22. In summary I have decided to:

    a. give the Appellant permission to appeal the recital in the September 2015 out of time and I have allowed that appeal;

    b. refuse permission to appeal the refusal to transfer the case to another court;

    c. refuse permission to appeal the decision to exclude Mr Bright as a McF in the case.

    Let me explain why.

    The recital to the Order dated 1st September 2015

    23. The appeal against this recital of the facts as the Judge saw them is brought out of time. The explanation for the delay is that M simply waited for the hearing in November at which she invited the Judge to re-consider her wording. I can see the sense in that and I can see why it might sensibly have been thought to obviate the need to issue a formal notice of appeal. Accordingly, I intend to give permission to appeal that recital out of time. I see no prejudice to F. He has always been aware that this recital was subject to challenge.

    24. The simple point made by the M is that the recital is factually incorrect. I have seen the email, appended to which are Mr Bright’s dates to avoid. It is clear that 1st September is one of his dates to avoid.

    25. To be fair to DJ Major and the listing staff at Croydon, the letter accompanying the schedule of dates is a little ambiguous. It sets out that the difficult period for Mr Bright is “from last week in July until first week in September….” and gives the impression that the period of availability begins in the first week in September. Anyone reading the email and not going on to read the appended list might have thought Mr Bright was available on 1st September. I strongly suspect that this is where the Judge and the court fell into error. However, I speculate, and as a matter of fact the Appellant is correct when she says that upon reading the list of dates to avoid appended to that email Mr Bright was not available on 1st September.

    26. Accordingly, I intend to give the Appellant permission to appeal that point out of time and I consider that the appeal succeeds on this issue. That order will be amended and that recital removed.

    The refusal to transfer the case

    27. I do not intend to give permission to appeal the refusal to transfer the case to a court more local to the Appellant. In my view such an appeal would have no reasonable prospect of success. This is a case management decision. It involves the exercise of the Judge’s discretion. I see nothing in her decision which would cause me to interfere with it. Only in circumstances in which it can be demonstrated that the Judge was wrong would an appeal succeed. In my view this decision is not wrong.

    28. DJ Major’s Judgment on this issue is commendably short. A reading of it reveals that she weighed in the balance all appropriate factors namely:

    a. the fact that ordinarily the case would be listed in the court most convenient to the children

    b. the convenience to M of a transfer to her local court and the difficulties that travel to Croydon posed for her;

    c. consideration of how those travel difficulties could be ameliorated by sympathetic listing times;

    d. the potential inconvenience to the F, the NYAS Guardian and any witnesses from the Anna Freud centre of any move to Worthing from Croydon;

    e. the value of judicial continuity in a case in which the history and the papers were voluminous;

    f. the likely delay caused by a transfer.

    29. Having considered all relevant matters and weighed them in the balance the Judge concluded that judicial continuity and the likely delay brought about by a transfer outweighed the convenience of M. That was entirely reasonable in the circumstances.

    30. The Appellant relies heavily upon the suggestion that the DJ “misapplied the context of judicial continuity” by which I assume she means weighed it too heavily in the balance. I disagree. In fact, her short, focused Judgment on this case management issue is entirely in keeping with the Guidance issued by the President and the emphasis placed by him on the importance of judicial continuity. This is just the sort of case that suffers badly by being denied the consistency of one person at the helm.

    31. It is further suggested that DJ Major could not claim judicial continuity as she had only just taken on the case. The fact is that DJ Major had imposed judicial continuity on the matter where previously none had existed. Whilst she had had no substantive hearing she had the Judgment of Judge Hay on fact finding, she had read the voluminous papers, she had made decisions as to the future management of the case, considering and deciding the direction of travel – the involvement of Anna Freud etc etc.

    32. Finally, the Appellant seeks to suggest that the complexity of the matter actually requires allocation to a Circuit Judge. I think not, but in any event this takes the appeal no further because that was not the application put before DJ Major. The application related to venue not the level of judiciary.

    33. Permission to appeal is refused.

    The exclusion of Mr Bright from acting as McF for M

    34. I do not intend to give permission to the M to appeal the decision to bar Mr B from acting as the M’s McF. Once again I am quite satisfied that any appeal on this point has no prospect of success. I will set out my reasons in a moment but before I do it is worth setting out how DJ Major deals with this issue in what is necessarily a longer Judgment than the one dealing with transfer but in my Judgment is no less focused.

    The Judgment

    35. DJ Major begins by correctly identifying the key principles and reminding herself that a litigant in person has a right to reasonable assistance from a layperson or McF (para 9) and starting from the “strong presumption” in favour of the M having a McF (para 6). The learned Judge rehearses that as it is F who objects to Mr Bright as a McF it is for him to satisfy her on the balance of probabilities that she should not permit the M to have assistance from Mr Bright (para 6). She then turns to the Practice Guidance and sets out the key principles in that Guidance (paras 7-14).

    36. The Judge correctly identifies that interference with the right of the LIP to a lay advisor is a potential interference with her Art 6 rights and as such she reminds herself that in circumstances, as here, where permission has previously been granted that permission should not be curtailed unless the court can be satisfied that there has been “subsequent misconduct by the MF or grounds that the MF’s continued presence will impede the efficient administration of justice and particularly the case”.

    37. The Judge finds that Maxim/ Mr Bright has been acting as an ‘agent’, contrary to para 4(1) of the Guidance, and that Mr Bright has also been “managing” the M’s case outside of court, contrary to para 4(2). In her Judgment she indicates that the evidence in support of these findings comes from the 3 bundles of correspondence provided by Mr Bright himself. She cites what she describes as a few examples in order to demonstrate why she finds as she does.

    38. The Judge goes on to conclude that in addition, Mr Bright’s involvement has “not been impartial or objective..” rejecting the assertion that it has been of assistance and further that Ms Bright’s involvement has “undermined the efficient administration of justice and the parties’ expectation of fairness before the law”. Again DJ Major goes on to list some examples making clear that there are many more within the 900 pages of correspondence produced by Mr Bright.

    39. Finally she concludes that..

    “The McF has been far too involved and familiar with the Children’s Services involved, which raises issues as to the impartiality of that evidence and whether it can be relied upon….”

    Later..

    “I do find that the involvement by Maxim Legal with the Children’s Services is unreasonable in nature…It has resulted in a proliferation of paperwork, not all of which is at all justified….I am not satisfied …..that Maxim Legal fully understand the duties of confidentiality and disclosure, particularly within Children Act proceedings and particularly within the context of these proceedings….For all of those reasons and with careful consideration, I exercise my discretion pursuant to the guidance to disallow Maxim Legal Ltd and Marcus Bright from being a McF to M in this case.”

    40. The Judge goes on to say that she is not preventing the M from having a McF

    “it...remains that [M] has the absolute right to instruct another McF in relation to these proceedings or other lay representative or qualified representative should she choose to do so…”

    41. Before I turn to the grounds for appeal let me just set out a brief reminder of where McF’s fit into the family justice landscape.

    Non- regulated assistance in family proceedings.

    42. Litigants in England and Wales are not required to instruct lawyers to act for them. All litigants have the right to conduct litigation and address the court personally. Since the withdrawal of public funding in private law family cases there has been an exponential rise in the number of litigants who have no alternative but to represent themselves. Having to conduct litigation can be very confusing and distressing for a lay person but never more so than when embroiled in a dispute with a former partner over the future of their child. The National Audit Office reported a 30% increase post-April 2013 in family cases where one or both parties were “litigants in person” or LIPs.

    43. In proceedings that take place in open court any individual who, for whatever reason, litigates without legal representation has a common law right to receive reasonable assistance from any third party. Where proceedings take place in private, as here, the court retains the discretion to permit a LIP to receive reasonable assistance from a third party.

    44. Third parties who offer assistance do not need to have legal training or experience, although some may have it. They may be a friend of the LIP, a family member, law student, or for example, a volunteer from the Personal Support Unit who supplies moral support only. They may also be an individual who provides such assistance on a regular basis and who seeks to exercise rights of audience to speak on behalf of the LIP. Such individuals are sometimes referred to as ‘professional McKenzie Friends’ and increasingly they charge the LIP a fee for their advice and attendance.

    45. Only at the courts’ discretion, may a McKenzie Friend be granted a right to address the court in order to help the LIP present their case to the court. The grant of such a discretionary right has become increasingly common in the family courts. In principle, a McKenzie Friend can also be granted a discretionary right to carry out the conduct of litigation for an LIP i.e. carry out certain tasks that would otherwise be carried out by a solicitor. The grant of such a right is, at best, rare.

    46. Generally, assistance is given in order to enable the LIP to conduct the proceedings more effectively. As such the courts have acknowledged there is a strong presumption in favour of not curtailing a LIP’s right to receive such assistance although there are situations in which that presumption may be set aside. See, for instance, Re O (Children) (Hearing in Private: Assistance) [2005] 3 WLR 1191, Re F (Children) [2013] EWCA Civ 726.

    47. Guidance as to the role of the McF is found 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. That Guidance sets out in detail the approach of the court. The Practice Guidance requires to be read in full but for present purposes I need to draw specific attention to paragraphs 4, and 13:

    “4. MFs may not: i) act as the litigants' agent in relation to the proceedings; ii) manage litigants' cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses.

    …….

    13. A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of confidentiality.”

    ….

    48. During the course of the arguments Mr Bright has sought to differentiate his role suggesting that he was not acting as a McF but rather as an “intermediary”. An intermediary in this context is a person or organisation who instructs direct access Counsel on behalf of the litigant. The intermediary is not entitled to act as a “litigator” as defined in the Legal Services Act 2007. However, the intermediary will, for example, prepare papers for Counsel and may assume responsibility for Counsel’s fees.

    49. Significantly, there is no dispute here from any of the parties or Mr Bright, that the court has both statutory and inherent powers to control anyone who misbehaves or abuses its process and this extends to the discretion to circumscribe the provision of reasonable assistance whether as a McF or an intermediary. The court may exercise that discretion, where for instance a third party has acted in ways contrary to the effective administration of justice, by excluding them from acting as such in future proceedings.

    The Grounds

    50. The M and Mr Bright, who intervenes, make common cause, and argue that the decision made by the DJ is fundamentally flawed. I have gathered together the arguments under the following broad headings:

    a. The flawed recital made in November 2014.

    b. The DJ’s confusion regarding what was being sought.

    c. Mr Bright’s explanations for his actions which had they been known to the DJ would, he argues, have made a difference.

    d. The DJ’s misapplication of the Guidance.

    Let me take each area in turn.

    The recital in November 2014 was made

    51. The context for this recital was the F’s objection to the continuing involvement of Mr Bright and the Judge’s discovery that Mr Bright had been on record on the court file as “acting”. In their skeleton arguments the mother and Mr Bright attack this recital as a decision made without giving reasons and seek to elevate it to a matter subject to appeal. Of course it is not subject to appeal here. However, that recital is no more than an accurate statement of the facts as they were at that time. Mr Bright did not ‘act’ for the mother (ie as a solicitor), he was erroneously on the court record as “acting”, Mr Bright did not at that point have this Judge’s permission to see documents and he should not have been communicating with third parties about the case.

    52. In my Judgment this recital has no bearing upon the order made a year later with which I am concerned and does nothing to support this appeal.

    Deciding the wrong issue

    53. Against the background of that recital, it has been argued on behalf of the M that DJ Major misunderstood “what was being applied for”. The argument is that all that was sought was the removal of the restriction on Mr Bright’s ability to see documentation because this was restricting Mr Bright’s ability to act in the role of intermediary between the M and her Counsel. However, this is demonstrably not the application before the Judge.

    54. It is unarguable in my view that there was any confusion regarding the issue to be determined. As I have set out in the background the issues for determination were recorded clearly on the face of the orders. To suggest at this stage that this was not what in issue is nonsense. Indeed, the transcript of the hearing sees DJ Major taken by Counsel acting on behalf of the M through the Guidance for MFs and arguing the case against the exclusion of Mr Bright as McF. At no point in the case did Counsel say that the issue was limited to seeking permission to see the papers in order to be able to act as an intermediary or for whatever reason.

    55. What is more, as I pointed out to Mr Bright in the hearing, if the DJ was justified in considering that his involvement was impeding the administration of justice then it matters not what label he attaches to himself in giving his assistance to the mother, she is still entitled to bar him from involvement. So this argument goes nowhere to found a successful attack on the Judge’s decision making.

    No opportunity to respond to the specifics

    56. Mr Bright raises a number of findings made by the DJ about his involvement asserting that they were not “put” to him in order to enable him to respond. He asserts that this has led the DJ into factual errors, to draw erroneous inferences and finally draw conclusions about him which are unfounded. Had he been able to explain, he tells me it would have made a difference and he sets out by way of example his explanations in respect of her direct criticisms of him.

    57. It is right that the expectation was that Mr Bright would give evidence at the hearing. However, by the time the hearing was finally in progress before DJ Major the court had received two very full statements of evidence from Mr Bright and had 900 pages of correspondence produced by Mr Bright himself, much of which speaks for itself. He was called to give evidence but no one had any questions for him. The fact that he was not permitted to expand upon his written evidence is not of itself sufficient to cause me to question the decision.

    58. I do not intend to deal with all of the points made. Suffice to say that in this appeal I have given Mr Bright the opportunity to respond to the specific criticisms made of him in places where he feels that his explanation would have made a difference to the outcome. I appreciate that at times this has bordered on him raising fresh evidence but I felt it important to let him have his say. I have examined each of his responses with care but have to say that far from undermining the decision of the DJ, his comments lend support to it. They provide yet more evidence, in my view, of Mr Bright’s fundamental misunderstanding of the limitations of his role whether as McF or intermediary and his lack of insight into the detrimental impact of his involvement on others involved and the case. The problem is that the correspondence Bundle is incapable of interpretation in a way which would save Mr Bright from the DJ’s criticisms of him. Let me illustrate my point through some specific examples.

    59. In the first example, Mr B complains that it was wrong of DJ Major to say F had refused to communicate with him and points to the voluminous correspondence between them as demonstrating that they did communicate. In fact, it was not wrong of the DJ to say that. There were numerous times when the father did say he wished to have no more dealings with Mr Bright but Mr Bright often ignored that pointing out to F that there was to be no communication between him and the M and that frankly he had no choice. By way of example, on 25th Feb F emails Mr Bright saying “you are not to email me any more in any manner. I find your emails harassing….” [A386]. The response from Mr Bright is that he has contacted F’s solicitor and ascertained she is no longer acting and so it may be necessary for him to communicate with the father and this would not amount to harassment. He then takes the opportunity to lecture the father on what he describes as the father’s “puerile habit” of barging into him at court, advising him that he may find his time is “better spent in contemplation of the situation that you have placed yourself and the children in…” and that his behaviour is “reminiscent of the school playground”.

    60. Again, in April 2014 the F asks Mr Bright to stop emailing or else the police will be involved. The response is this: in the event that the police are involved “I will explain to them that they have no jurisdiction to prevent me from communicating with you regarding the existing proceedings….I have no option but to communicate with you. Indeed I have a legal obligation to do so…..my standing as your ex-wife’s legal advisor is well recognised by the Court…” This pattern of F asking Mr Bright not to contact him and Mr Bright responding saying he has no choice but to accept his communications, has continued throughout the litigation. These are unpleasant exchanges and yet they are produced by Mr Bright himself and relied upon by him to demonstrate that the F was communicating with him whilst failing to see how inappropriate they are. A legal representative communicating with F in that way would be severely criticised.

    61. Another example is Mr Bright’s assertion that the DJ was wrong when she says he had made “substantial changes to a report” – at E11. Mr Bright does not deny the changes but categorises them as “typos” thereby missing the point. In fact, DJ Major was not wrong to categorise those changes as “substantial”; in litigation terms, they were. The email in question sees Mr Bright communicating directly with the SW who has prepared Core Assessments in respect of the children. In the email Mr Bright is asking if he can make amendments to the copy of her Core Assessment before it is handed to the Judge. It is utterly inconceivable that it would ever be right for one litigation party to amend the evidence produced by a professional witness – even if it was just a typo. The phrases he suggests need altering are the identification of who had said certain things – so where it was written that the mother had said something, he suggests changing that to read that the child had said it. I can see that those amendments were accepted by the author but that does not mean they are insignificant or that it was for Mr Bright to make them. The father had the right to know that the SW had changed them. He might have had questions about why they were wrong in the first place. He might have wanted to suggest that this demonstrated that they had come from the child and not the mother. He might not have succeeded but the point is he never got the chance because Mr Bright was perfecting the final copy before he ever got to see it. This would be unacceptable behaviour for a solicitor.

    62. In addition, this communication is between just the two of them. The F is not copied in – a common occurrence when Mr Bright is writing to third parties about the case. This is another way in which DJ Major considers that he exceeds his role. In his skeleton Mr Bright argues that DJ Major misunderstands “the way in which the local authority operates” preferring to speak to people separately “so that matters can be put to them openly without fear of intimidation from the other”. Mr Bright is wrong. Whilst there may be a few occasions where parents are interviewed separately for the reasons that he gives, the record of those exchanges is always made available to the other but this exchange and the vast majority of the over-friendly exchanges between Mr Bright and the SW do not warrant that treatment and even if they did they did not warrant being concealed from the father. It is Mr Bright’s inability to understand the significance of this even now that demonstrates yet further the lack of insight he has into the limitations of his role and the impact his exceeding those limitations has had upon the proceedings.

    63. The pattern of behaviour revealed in just those two examples is repeated throughout the correspondence bundle. Further, nothing that Mr Bright has said to explain his actions undermines DJ Major’s core findings that he was impeding and undermining the administration of justice in the case.

    Misapplied the Guidance

    64. Two points are made in relation to the appropriate test to be applied in denying the mother the right to the continued involvement of Mr Bright in the case. The first is that the wrong interpretation of “agent” was applied and the second is that the DJ elided paras 4 and 13 with the result that she elevated a breach of any part of paragraph 4 to an automatic ground for the exercise of her discretion under paragraph 13.

    65. I agree that DJ Major applied too broad an interpretation of the word “agent” in the Guidance. I agree with Mr Bright that the context of paragraph 4 of the Guidance suggests that “agent” should be interpreted in the legal sense of the word, that is, able to bind his principal. Is this enough to undermine the decision? I think not. The breaches of para 4(1) identified by the DJ were one of the ways in which she identified Mr Bright as exceeding his role. There were numerous others and it was the combination of those factors that lead to her decision to exclude him from future involvement in the proceedings.

    66. This brings me to the suggestion that the DJ elevated breaches of paragraph 4 to a basis for exercising her discretion in paragraph 13. I do not agree. The DJ did find that Mr Bright had exceeded what he was able to do as a McF by doing things that are set out in para 4 that are not ordinarily permitted of a McF. However, the reason she exercised her discretion to exclude Mr Bright from further involvement in the litigation was her firm conclusion that he had undermined the efficient administration of justice (para 40) and would continue to do so if allowed to be involved (para 38). The basis for her finding this to be so was a combination of findings including her belief that he had acted as an agent in breach of para 4(1), that he had managed the LIPs case outside of court in breach of paragraph 4(2), that his involvement had not been impartial or objective (para 39), that Mr Bright had become too involved and familiar with children’s services raising questions as to their impartiality (para 40-41), that his involvement was unreasonable in its nature and degree (para 41) and that Mr Bright did not understand the duty of confidentiality (para 43).

    67. Mr Bright seeks to rely upon the fact that he was acceptable as a McF to both Judges Hay and Atkins and therefore DJ Major’s analysis must be wrong. In the first place, there is some doubt as to whether Judge Hay in particular was entirely cognisant of his role. Particularly, given that at the time of her involvement Mr Bright was on the court record as “acting”. However, even if they were both clear that he was not a solicitor they did not have to consider the objections made by the father and they had not seen the correspondence which was for DJ Major so pivotal and so damning.

    68. Finally, Mr Bright suggests that a more proportionate way of dealing with this would have been to give a warning as per para 10 of the Guidance. This was not suggested to the DJ but in any event it does not undermine her decision making in my view. Mr Bright’s behaviour in this case goes so far beyond the limits for so long and in circumstances in which he simply fails to understand what he has done wrong, I cannot imagine that a warning would have brought about any change. Added to that, the damage to the relationship with the father was, by the time of the application, significant and would have been impossible to unravel.

    Conclusion

    69. All things considered I am quite satisfied that the DJ’s decision to exclude Mr Bright from these proceedings was a sound one. She identified the appropriate principles, weighed all relevant matters in the balance and gave clear reasons. She did fall into error in her interpretation of “acting as an agent” but given the extensive evidence – produced by Mr Bright himself – which demonstrated overwhelmingly that he was affecting the efficient administration of justice, that error alone would not found the basis for a successful appeal in my view. Permission is refused.

    70. I finish with this: during this case the McKenzie Friend in question has on occasions described his role as ‘quasi-solicitorial’. There is no such thing as ‘almost’ a solicitor. You are either a solicitor or you are not. Significantly, if you are, you are bound by your professional duties and you are externally regulated. Whilst a “professional McKenzie Friend” is not subject to regulation in the way that barristers and solicitors are, the powers utilised by DJ Major in this case are available to ensure that the limits within which non-regulated third parties are permitted to operate are respected and the absence of professional rules does not permit the interference with justice. The proper exercise of these powers, as I have already observed, takes time and effort which is inevitably to the detriment of the substantive issues in the case. Given the objections raised by the father, legitimately as it turns out, the Judge had no alternative but to deal with them and in my Judgment she has done so properly. Nevertheless this has taken up hours of court time when the focus of the litigation should have been the two children subject to the applications. If ‘professional’ McKenzie Friends are to assist parents in such emotionally fraught cases they must be sensitive to these issues and mindful of the dangers of becoming an irritant hindering the process rather than giving the assistance that the courts have been used to in the past.

Judgment, published: 29/06/2017

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Published: 29/06/2017

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