J (Children), Court of Appeal - Civil Division, February 06, 2018, [2018] EWCA Civ 115

Issuing Organization:Civil Division
Actores:J (Children)
Resolution Date:February 06, 2018
 
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Neutral Citation Number: [2018] EWCA Civ 115

Case No: B4/2016/3559/CCFMF

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MANCHESTER COUNTY AND FAMILY COURT

HIS HONOUR JUDGE ALLWEIS

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/02/2018

Before :

LORD JUSTICE McFARLANE

and

LADY JUSTICE KING

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The Appellant Father (in person assisted by a McKenzie Friend)

The Respondent Mother not attending

The representatives of the child (NYAS) not attending

Hearing date : 11 October 2017

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Lord Justice McFarlane :

  1. This is an appeal from a decision of His Honour Allweis, sitting in the Manchester Family Court at the conclusion of contested proceedings under the Children Act 1989, s.8. The outcome of the proceedings was that no order for contact was made with respect to the eldest child, a boy, `B', now aged 16, and only limited provision was made for indirect contact to the youngest child, a girl, `C', now aged 11. The children were born to a married couple who separated in September 2014. It is a striking fact that since the day he left the family home the father has had absolutely no contact whatsoever, either direct or indirect, with these two children, or, indeed, their older brother, `A', who is now aged 18.

  2. In bringing his appeal, for which I granted limited permission in March 2017, the father seeks to challenge a number of the key procedural steps undertaken within the proceedings which, individually and together, he submits amounts to a failure on the part of the court to deploy its powers to the best ability to maximise the prospect of reinstating some form of contact with at least some of his children.

  3. The children's mother has taken no step to engage in the appeal process. It is said on her behalf that she lacks the funds to instruct lawyers and her health prevents her from taking part in the appeal process as a litigant in person. The two children, who were parties to the proceedings and represented by a social worker appointed by NYAS as their children's guardian, have also played no part in this appeal. Legal aid was only granted for the guardian in the appeal effectively on the eve of the oral hearing before this court. NYAS did not prosecute an application for an adjournment and the court did not consider that it was necessary to adjourn the proceedings to enable them to play a more active part.

    Background

  4. The parents were married in September 1995 and, as I have indicated, have three children now aged between 11 years and 18 years. Separation occurred in September 2014 when the father left the family home.

  5. Proceedings before the Family Court commenced on 22 December 2014 when the mother applied, without notice to the father, for a non-molestation order under Family Law Act 1996, Part 4. Her application was supported by an extensive list of allegations of physical violence, drunken and controlling behaviour on the part of the father, including a serious and detailed allegation of marital rape on 21st January 2014.

  6. At the first hearing District Judge Mornington granted a without notice non-molestation injunction, but made provision for an on notice hearing before her early in January. In addition to standard terms prohibiting the use or threat of violence, the father was expressly required not to:

    `Communicate with the applicant or the children whether by letter, text message, social media or other means of communication'

    The order also prevented the father from instructing or encouraging `any other person to do anything which he is forbidden to do by this order.' The duration of the order was for two years, until 22 December 2016, but a return date was fixed for 2nd January 2015.

  7. Upon receiving notice of the proceedings the father denied the allegations made by the mother and, instead, asserted that it was the mother who had been guilty of abusive and controlling behaviour within their relationship. The father also issued an application for a child arrangements order with respect to all three children with the aim of maintaining a full relationship with each child on the basis that they would reside with him.

  8. At a key directions hearing on 17 February 2015, the Family Law Act and Children Act proceedings were consolidated. It was directed that the mother would be the applicant in the consolidated proceedings and that her solicitors would have responsibility for processing an outstanding application to the Greater Manchester Police for disclosure of any relevant material. The order from that hearing records that District Judge Mornington determined that a finding of fact hearing was ``necessary'' in these proceedings.

  9. At a further directions hearing on 23 April 2015, directions were given as to the material that had, apparently, been disclosed by the police and included a provision for transcribing DVD evidence, with the father being responsible for paying half of the costs. The mother's solicitors were to make further enquiries of the police in relation to material that possibly remained undisclosed.

  10. It is plain that District Judge Mornington was fully alive to the potential difficulty of conducting a fact-finding process with the father as a litigant in person in a case where it may be necessary for the mother, and, indeed, the eldest child A, to be cross-examined as to the allegations of violence and rape that she had made. The judge therefore directed that the potential for an order requiring HMCTS to fund the father's representation, which was, on the case law at that time, a potential option at that stage, be transferred for consideration and allocation by the local Designated Family Judge or the Family Division Liaison Judge for the circuit.

  11. As a result of the referral to more senior judiciary the case was allocated to His Honour Judge Allweis and listed before him for the first time on 2 July 2015. On that occasion there was an issue as to the role that the father's Mackenzie Friend would take in the proceedings generally, and, more specifically, whether or not he might undertake the cross-examination of the mother and the eldest boy. The court order for that day records that

    ``having considered the documents, received the representations of the parties, and the safeguarding report, the court is currently of the view that a fact-finding hearing is necessary in this case; however, the court will consider this again at the next hearing.''

  12. There was no objection to the father having the assistance of a Mackenzie Friend and no objection to the identity of the particular Mackenzie Friend involved who, indeed, the judge described as ``obviously a very experienced Mackenzie Friend''. The issue related to what, if any, rights of audience the Mackenzie Friend might be afforded.

  13. It is now well known that difficulties exist where challenge is made by a litigant in person, who is identified as the perpetrator of serious abuse, and that challenge falls to be put in cross-examination to the key witnesses who support those allegations. The case law on this topic was developing during the currency of the present proceedings and, by July 2015, this court had given judgment in the case of Re K and H (Children) [2015] EWCA Civ 543 which rejected the suggestion that there was jurisdiction in the court to direct that HMCTS, or indeed any other agency, should provide public funding for limited legal representation. HHJ Allweis noted that decision and rehearsed the key details of it in his short judgment. He noted that `the case is a difficult one in which, in extremely broad terms, the parents make serious allegations against each other'. He focused upon the application for rights of audience for his McKenzie Friend made by this father in these proceedings at paragraph 15 of that judgment in these terms:

    ``15. The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties' 16 year old child if in due course X gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect. [The McKenzie Friend] has suggested that he has been given rights of audience frequently by judges and I pressed him as to whether this had ever happened in Greater Manchester. In effect he said that it had not and that there may be geographical differences. I told him in no uncertain terms that I have never come across it in Greater Manchester and this court, of course, is one of the busiest, if not the busiest, family court in the country.''

  14. The judge then reminded himself of the relevant practice guidance on McKenzie Friends ([2010] 2 FLR 962), in which the President, at paragraph 4, states that McKenzie Friends may not, inter alia, ``address the court, make oral submissions or examine witnesses''.

  15. The judge refused the application saying:

    ``19. At the end of the day, for the reasons I have given, the application is refused. I contemplate with profound disquiet, and that is putting it pretty mildly if I may say so, the prospect of a McKenzie Friend, in effect with rights of audience, cross-examining a mother in relation to serious and complex allegations, let alone a teenage child of the parties if and when X gives evidence so the application is refused.''

  16. The case came back before the judge on 17 July 2015. The order made on that occasion records that the case is being adjourned `to allow for NYAS to undertake their enquiries and report by 10/9/15'. Under the heading `Finding of Fact Hearing', the order states that `the Court will consider the necessity of such at the next hearing.'

  17. The case next came before Judge Allweis on 17 September 2015 by which time the judge had received an extensive report from the NYAS worker which recorded trenchant and highly negative views expressed by all three children...

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