There has been some recent criticism of McKenzie Friends, those unqualified, unregulated scoundrels who are taking all the work away from legitimate lawyers. So I thought it would be appropriate to say something about the case of Re C (A Child) (Procedural Requirements of a Part 25 Application)  EWCA Civ 539. If you are not familiar with this case, it is quite an eye-opener, and demonstrates what a difference to justice a good McKenzie can achieve. Seusspicious Minds has already covered this case much more expertly than I can, so I will try to be brief.
The father in the case was a Serb with limited English seeking unsupervised contact with his three-year-old son. He was assisted by a McKenzie Friend in the Dover Magistrates Court. The parents were also in disagreement over schooling, vaccinations and what name the child should be known by, though these issues were not the subjects of the particular hearing.
In the course of the proceedings the mother’s barrister, Lydia Slee from Stour Chambers, who had previously been a magistrates’ clerk, made an oral request that the father submit to a psychological assessment; the mother claimed that the father had a personality disorder, but no evidence was offered in that or subsequent proceedings. The father had hugged his child in the contact centre, and taken a photograph of the child, against the centre’s rules.
As Lord Justice Ryder in the Court of Appeal later noted, there was no written application, ‘The expert was not identified. There were no CVs for the court to consider, no timetable, no issue identification, no draft letter of instruction and no costings. Father’s only notice of the application was in an informal discussion before the proceedings and he says that he did not understand that the application was going to be made in the face of the court’. In fact, no written application was ever made.
Ryder further noted that it was ‘simply wrong’ that the magistrates had placed the onus of proof on the father to prove that the mother’s claim was false. There was no attempt to consider a ‘proper and fair process’ in a case involving a litigant-in-person with a poor grasp of English, contrary to the training which Ryder noted the magistrates would have received.
Instead, the magistrates asked the CAFCASS FCA for his opinion, and he doubted that there was any reason to believe there was a mental health issue or that an expert witness could help.
The mother’s application was in breach of Practice Direction 12B and the Child Arrangements Programme.
Extraordinarily, the trio of magistrates acceded to the application, merely repeating the mother’s case without analysis and without explaining why they rejected the FCA’s advice, which was contrary both to statute – the Children and Families Act 2014 – and procedure – Part 25 of the Family Procedure Rules 2010; they made an order in these terms:
- The Father shall submit to a full psychological assessment and the following consequential directions apply:
a) The expert shall be Court accredited
b) The identity of the expert and letter of instruction shall be agreed within 7 days and in the absence of an agreement shall be nominated/approved by the court
c) The report shall be filed and served by 4pm on 23rd January 2015
d) The costs of the said report shall be borne equally between the parties, the court deeming that the costs are a necessary and reasonable disbursement
This order was unlawful: the court had no power to make such an order in such terms. Even if it had, it could not have complied with the demands of Practice Direction 25B regarding the instruction of an expert, because the expert, his professional body and his expertise had not been identified. Even that part of the order relating to costs was made without consideration of due procedure, and without determining whether the father could afford to pay (it was assumed that the mother’s share would be paid by the Legal Aid Agency). The court didn’t even have any idea what the costs would be. Unsurprisingly, the father, supported by his McKenzie, appealed, and his appeal was heard by Circuit Judge Richard Scarratt. Astonishingly, Scarratt also ignored the entirety of Part 25 and the Child Arrangements Programme.
Unsurprisingly, the father, supported by his McKenzie Friend, appealed, and his appeal was heard by Circuit Judge Richard Scarratt. Astonishingly, Scarratt also ignored the entirety of Part 25 and the Child Arrangements Programme.
The case was returned to the magistrates for directions and, as Lord Justice Ryder relates, ‘Unbelievably, and despite the time that had elapsed which would have permitted compliance with the statutory scheme and the Rules, the Family Court proceeded to make further directions as to expert evidence without any of the protections to which I have referred being observed’.
Ryder concluded that neither the decisions by the magistrates nor that by Judge Scarratt could stand and that they be set aside. He ordered that proceedings should be remitted for allocation to a new judge, that the same FCA should be involved and that supervised contact should continue. Agreeing with Ryder’s judgment, Lord Justice Aikens added,
It is the duty of all family law practitioners and the courts to learn, mark and digest these provisions and ensure that they are applied rigorously. They were completely ignored in this case by both the magistrates and, I fear, by Judge Scarratt, and further ignored even when the case came back before the magistrates again on 30 January 2015. Moreover, as Ryder LJ has pointed out, a mandatory order that the father should subject himself to a psychological assessment, a form of medical procedure, was unlawful. That, too, was not apparently appreciated by either the magistrates or Judge Scarratt.