Litigants in person face a minefield

A case I read yesterday neatly brought together two points that I have made recently on this blog.

Re F (Children) is actually a two year old judgment, but it has only just appeared on Bailii. It demonstrates both how litigants in person can so easily choose the wrong path, an issue I examined here in this post, and how they can sometimes make bad decisions when it comes to choosing a McKenzie friend, thanks at least in part to the fact that McKenzie friends are not properly regulated, an issue I discussed here.

The problem of ensuring that litigants in person get good legal advice and assistance has, of course, become much more acute since the abolition of legal aid for most private law family matters, which has obviously substantially increased the number of litigants in person. I should point out, however, that the mother in Re F did have the benefit of legal aid (it was a child care case and legal aid is still available for care proceedings) and did therefore have lawyers, but she parted company with them after the care orders were made in respect of her two sons.

At this point the proceedings concerned two matters: the mother’s application to discharge the care orders and an application by the local authority for an order that the boys be placed for adoption. Unfortunately, the mother’s case was seriously hampered by her treading on two unexploded devices in the minefield of perils that lie in wait for the unwary litigant in person.

The first pitfall that the mother fell into was to seek publicity for her case after the care orders were made. This is unfortunately a not uncommon mistake made by parents in child care cases. It is understandable, especially where proper legal advice is not taken or not available. They feel that the system is against them and, in desperation, they think that their case will be helped by the court being barraged by adverse media attention. The reality is that, far from helping their case, these actions are only likely to make things worse for the parents. In this case, the local authority obtained an injunction restricting the mother from publicising the case, and any breach of that injunction by the mother could of course have ended up with her facing a prison term.

The second pitfall into which the mother fell was in respect of her choice of McKenzie friend. Unfortunately, some McKenzie friends appear to be motivated to assist parents in child care cases more because of concerns about the system than out of a desire to help the parents. Such, it seems, was the case here.

The mother applied to the court for permission to have the McKenzie friend assist her in court. However, the court refused the application, and didn’t even let the McKenzie friend into court to argue the issue, as should usually be the case. The mother sought permission to appeal against the refusal.

The Court of Appeal refused to grant the mother permission to appeal. Giving the leading judgment Lord Justice McFarlane said that the McKenzie friend had prepared and circulated a statement in connection with the case. In it she said that she had had contact with many parents in the area of this local authority and that she had found matters which caused her deep concern as to the pattern of behaviour of the local authority. She went on to indicate that she had permission from a number of parents to highlight the cases that she had heard about, which to her eyes indicated the pattern that she had described. She then went on in detail to make substantive points about those individual cases. Attached to the statement was an extract from what seemed to be a social work statement in another case and a 70-paragraph statement from a lady who seemed to have no connection with the proceedings, analysing the court’s judgment and making detailed points about it.

The judge who had refused the mother’s application said about the McKenzie friend:

“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. 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.”

Lord Justice McFarlane clearly agreed. He said of the McKenzie friend’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.”

He concluded:

“…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.”

Note, incidentally, that the McKenzie friend was quite wrong to suggest that she was entitled to disclose details of other cases because the parents in those cases had given her permission to do so.

As Lord Justice McFarlane pointed out:

“…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.”

I will repeat yet again that there are some very good McKenzie friends out there. However, without proper regulation it can be extremely difficult for litigants in person to find them, and there is usually no redress if they end up with a bad one.

I also wish to emphasize once more that I have nothing whatsoever against litigants in person. However, as this case so clearly demonstrates, without proper legal help they face a minefield full of bad choices that can hinder or seriously damage their case. And when that case involves such an important issue as whether your child is removed from your care, one step in the wrong direction can have consequences that hardly bear thinking about.

You can read the full judgment in Re F here.