FAMILY PROCEEDINGS: In the Matter of the Children of Mr O'Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759

22 JUN 2005

(Court of Appeal; Thorpe and Wall LJJ; 22 June 2005) [2005] 2 FLR 967

The rationale for allowing a litigant in person the assistance of a McKenzie friend is to further the interests of justice. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 6 is engaged in any application by a litigant in person to be assisted by a McKenzie friend. There is a strong presumption in favour of a McKenzie friend and a request should only be refused with good reason. The litigants intelligence, ability to utilise the facts and documents, the nature of a directions or case management hearing, confidentiality of proceedings and sensitivity of information were not compelling reasons themselves to refuse assistance. Where the court refuses to allow a McKenzie friend this should be fully explained to the litigant and would-be McKenzie friend. The proposed McKenzie friend should not be excluded from the hearing of the application. Where the court has decided to allow a litigant in person a McKenzie friend there is no reason in principle why documents cannot be disclosed to the McKenzie friend but the McKenzie friend should not use the papers for any other purpose without the court's approval. It was not contempt of court to show documentation to, or seek advice from a proposed McKenzie friend prior to any application for assistance provided the proposed McKenzie friend understood the information was not to be disclosed. There is no objection in principle to disclosure of court documents to a public authority with proper interest in the subject matter. Such an authority was not the public at large or any sector of the public within the meaning of the Children Act 1989, s 97(2) as amended.

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