Tuesday, August 26, 2008

Right of Audience & Anonymity

Following a series of newspaper articles and public pressure regarding the secrecy in family courts mentioned in this earlier post last week a judgement preserving a child's anonymity was handed down in public. In England & Wales a litigant in person may be accompanied by a McKenzie friend to a court hearing for the purpose of assisting them in matters such as taking notes, organising the documents, and quietly making suggestions. A McKenzie friend has no right to address the court. N (A Child), Re [2008] EWHC 2042 (Fam) relates to McKenzie friends' rights of audience.

Whilst determining financial provision for the child the father had represented himself with the assistance of the well known campaigner for open justice, fathers' rights activist and McKenzie friend, Dr Michael Pelling. During the proceedings it was agreed it would be simpler and quicker if Dr Pelling, with all his knowledge of points of law and procedure, addressed the Judge rather than the father. Then in the final hearing of the section 8 (the section of the Children Act 1989 which deals with residence, contact and other orders) proceedings the mother had appeared in person, assisted by a McKenzie friend, Mr David Holden, and the father was represented by Mr James Bogle, who was attended throughout by Dr Pelling, acting as his solicitors' clerk. The child's guardian was represented by Ms Kate Hudson.

The father's side objected to the mother's wish that Mr Holden be allowed to speak on her behalf, examine and cross-examine witnesses and make submissions. Mr Bogle's objections were (1) that the mother had not made an application to that effect at the start of the hearing as required by the President's Guidance and she had not given any notice of such application and (2) that there were in any event no exceptional circumstances to justify Mr Holden being given rights of audience in this way. No ruling was made on the 21st July and the parties went away to negotiate returning on 24th July when the mother wished Mr Holden to address the Judge. This is what happened next;

14. Since he was instructed only in the section 8 proceedings and the issue which the mother wished to canvass related in part to the Schedule 1 proceedings, Mr Bogle indicated that oral submissions in relation to Mr Holden's proper role would be made by Dr Pelling. But this, as I pointed out, gave rise to a difficulty, for Mr Bogle's skeleton argument (which I understood Dr Pelling wished to adopt) had concluded with the submission that, because the mother's application raised important questions of principle and fairness in relation to rights of audience, and because the hearing of the application and judgment thereon would not appear to require any reference to the circumstances or private life of the child the subject of the section 8 proceedings, the hearing should be in open court with public pronouncement of judgment in accordance with the common law principle of open justice (reference being made to Scott v Scott [1913] AC 417) and in accordance with Article 6(1) of the Convention.

15. The difficulty, of course, was that although Dr Pelling, as a solicitor's clerk, had a right of audience before me in chambers, he had (as he agreed) no higher courts right of audience and therefore no right of audience before me in open court. And given the objection he wished to take on behalf of the father to Mr Holden being granted a right of audience for the purpose of the proceedings, it would scarcely have lain in either his or his client's mouth to assert a similar right of audience on his own part. So although Dr Pelling would be at liberty to address me in chambers in support of the preliminary argument that the substantive hearing be in open court, were he to be successful in that argument (which I was inclined to think he would be) and were I accordingly to go into open court for the substantive argument (which was likely), he would not be able to address me. Thus, unless Mr Bogle were to be instructed in the matter, any oral arguments which the father might wish to put before me he would have to make himself.

16. Faced with this difficulty, high-minded principle soon gave way to practical pragmatism. Dr Pelling indicated that the father now wished me to deal with the matter in chambers, so long as judgment was delivered in public. In the circumstances I was prepared to agree to this course.

After hearing the arguments in chambers Mr Justice Munby granted Mr Holden the right of audience and after hearing his point the parties went away and negotiated an agreement in relation to the section 8 proceedings. The judgement was drafted preserving the anonymity of both parties and the son. At this point the father submitted that there were good reasons against anonymity namely; (1) he and Dr Pelling wanted to "be free to write and talk about the proceedings but that it would be quite artificial and unnecessary for the father to conceal the fact that he was a party and was speaking from direct experience." (2) anonymisation inhibits the free interchange of ideas and communication of experience in a democratic society and if the case is anonymised then it will be difficult for anyone interested to contact the father, though others interested in rights of audience and McKenzie friend issues may well wish to do so and (3) there is a case for changing the law in regard to rights of audience but campaigning is inhibited if one does not know the identities of those involved in setting case precedents.

The mother's submission was that litigation had gone on for for almost all of the child's life, the consent order was to end this and the child shouldn't be used as a pawn in a political agenda. Ms Hudson representing the child's guardian supported this view and it was ruled the detriment the child would suffer should his family and name be disclosed outweighs any right the father or the world at large to discuss matters by reference to the names of the parties. The judgement was handed down to the public and the anonymity of both parents and the child preserved.


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