Court allows McKenzie Friend rights of audience in fact-finding hearing on domestic abuse allegations

Citation: [2023] EWFC 232
Judgment on


In the case of Re A and B (fact-finding hearing – sexual abuse: no QLR available) [2023] EWFC 232, Recorder O’Hagan presided over a complex fact-finding hearing concerning allegations of domestic and sexual abuse within the context of child arrangement proceedings. The key issues involved the assessment of domestic abuse allegations, the intersection of family law and criminal law concepts, procedural fairness, the role of McKenzie Friends, and the appointment of a Qualified Legal Representative (QLR) in family proceedings.

Key Facts

The fact-finding hearing pertained to allegations made by the mother against the father of two young children, Child A and Child B. The mother and father’s relationship began in 2015, experienced separations, and terminated permanently in January 2022. The father sought a child arrangements order, which led to a series of hearings and ultimately this fact-finding hearing. The lack of availability of a QLR prompted the father to seek rights of audience for his McKenzie Friend, Mr. Ison, which was granted by Recorder O’Hagan due to the particular circumstances of the case.

Rights of Audience for McKenzie Friends

The court considered the rare step of granting rights of audience to a McKenzie Friend according to the guidance outlined by McFarlane LJ in Re: J (children) [2018] EWCA Civ 1152 and set forth in the position statement by Ms. Bell-Paris, counsel for the children. A key consideration was the absence of a QLR and the necessary ability to ask relevant questions for the fair conduct of the trial.

Fact Findings – Burden and Standard of Proof

Recorder O’Hagan emphasized the principles established in Re B (Children) [2008] UKHL 35 that the burden of proof rests with the person making the allegation, and the standard of proof is the balance of probabilities. Furthermore, R v Lucas dictates that lies do not necessarily mean a party has lied about everything. The court painstakingly considered the credibility of each piece of evidence, following Re A, B and C (Children) [2021] EWCA Civ 451.

Approach to Domestic Abuse Allegations

Following the guidance of Re H-N and others [2021] EWCA Civ 448, the case illustrates the shift away from examining isolated incidents to recognizing patterns of abusive behavior. PD12J elaborates on the definitions of domestic abuse, coercive behavior, and controlling behavior, focusing on a pattern of acts.

Credibility and Demeanour of Witnesses

The court carefully assessed the demeanour of witnesses but noted the necessity of caution, as explained by Hickingbottom LJ in Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198.


Recorder O’Hagan found a pattern of abusive behavior by the father, centered around a disregard for the mother’s autonomy, particularly in sexual matters. The court accepted several of the mother’s allegations, including the existence of a “rape corner,” and the father’s violent and abusive behavior, corroborated by text messages and the conduct witnessed by the police and school staff. Mr. Ison, the McKenzie Friend, was allowed to represent the father in this case due to exceptional circumstances, including an absence of a QLR.


The judgment in Re A and B serves as a reminder of the evolving approach towards allegations of domestic abuse within family proceedings, reiterating the need for an analysis that recognizes behavior patterns rather than isolated incidents. This case underscores the importance of adhering to established legal principles, even when adaptations such as granting rights of audience to non-qualified personnel are necessary to ensure a fair hearing. Importantly, this case sets a strong precedent for the delicate balancing act between procedural fairness and the substantive rights of parties in family law cases, especially when allegations of a serious and sensitive nature are involved. The findings have set the stage for further proceedings which are bound to influence the final child arrangement orders, with an emphasis on the welfare and protection of the children involved.

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