The qualities of the qualified

Few cases in which Family President Sir Stephen Brown gives judgment in open court fail to make the headlines. One recently, however, did not. But from the point of view of the legal profession, it is, in the words of one lawyer involved, "a very important ruling".

The case was over the rights of the non-legally qualified to represent litigants in court and accept fees for their roles. It focused on the approach of the courts towards the Courts and Legal Services Act 1990 provisions relating to rights of audience and rights to conduct litigation.

In the case, Dr Michael Pelling, described by Brown as "a mathematician with no formal legal training", had taken on representation of a father who lives in Kenya and is engaged in wardship and Children Act proceedings relating to his children aged 10 and 13.

Pelling argued he was entitled to a right of audience and a right to conduct litigation on behalf of the father under the provisions of the Courts and Legal Services Act, and had succeeded in winning the go-ahead to do so from a lower court.

However, the mother's legal team, of solicitor Anne-Marie Hutchinson and barrister Henry Setright, both long-standing family law specialists, successfully argued before the president that Pelling should not have been given those rights.

Among other things, it emerged at the hearing that Pelling had not made the judge who gave consent for him to act aware of an earlier unreported Court of Appeal ruling against him on a similar matter.

Brown, in rescinding the consent granted to Pelling, reiterated the words of the Master of the Rolls, who, in another case involving Pelling, had warned that courts facing applications by Pelling or others like him should "pause long before granting rights of audience".

Brown says: "The position is a serious one. It is clear Dr Pelling is seriously pursuing a course of conduct offering a service in litigation in which he has insufficient experience and is unqualified. The whole purpose of the provisions of the law relating to representation is to protect members of the public. I am satisfied it is not in the interest of justice that Dr Pelling should continue to represent the father in this case."

The president says he is also particularly concerned because the case in question involved children, and the law was aimed at ensuring those involved in such cases had special expertise.

Hutchinson says, while emphasising that none of her comments should be taken as personal criticisms of Dr Pelling or as comments on the facts of this case, that an important general principle of law has been established.

She stresses, however, that an entirely different situation arises when a litigant is assisted by a "McKenzie friend" as opposed to someone being paid, but who is not a professional.

"I am bound by professional ethics and duties," she says. "But when you find yourself dealing with someone who is not, and who is not an officer of the court, that can create serious problems.

"How, for example, can you hold, without prejudice, discussions with someone who is not bound by the same rules as you are? The situation is fraught with difficulty.

"In the light of this judgment it is very difficult to think of any circumstances in which such leave could be granted in the future."