The Custody Minefield McKenzie Friend Guidance

1)      The role of the McKenzie Friend (MF)

In court, and according to the directions of the President of the Family Division of the courts dated 14th October 2008, an MF's role is to:

        a)    Provide the litigant with emotional support.

b)   Take notes.

c)   Help with case papers.

d)   Quietly give advice on:

i)       Points of law;

ii)      Issues that the litigant may wish to raise in court.

iii)    Questions that the litigant may wish to ask witnesses.

Lay advisors may also provide advice and assistance over such matters as assisting parents to be involved in their children’s schooling or medical matters which do not involve applications to the court.

2)      Recommended best practice - advice

a)   It is suggested that the MF recommends that the litigant considers the option of mediation, including making the offer to enter mediation with the other party as an alternative to litigation. The decision to enter mediation should be balanced against the extent to which it may create harmful delays and the prospects of success. 

b)   The MF should suggest options available to the litigant, but clearly point out the potential risks related to each option.

c)   The MF should identify and explain the litigant’s options, and once the litigant has made their decision, to assist then in the preparation of their case and arguments in line with the course they have chosen.

d)   The MF should always endeavour to identify the risks involved in recommending any particular course of action.

e)   The MF should not enter into any direct correspondence with the other parties, their legal representatives or the Court. It is for the litigant to enter into correspondence, albeit with the assistance of the MF/Lay Advisor where required.

f)    The MF should always attempt to provide advice based upon the realities of the legal system rather than an idealised view of how the system should be.

g)   It is advisable to have the litigant consider compromise positions as well as their ideal outcome.

h)   It is best practice for the MF only to put forward options for proposals that are in the child’s best interests, rather than the litigant’s.

i)    The MF should remind their client that Court proceedings must be treated in strictest confidence, and only suggest courses of action that are lawful. Individuals and organisations with whom a litigant can discuss their case are set out in the Family Proceedings (Amendment No.4) Rules 2005.

j)    The MF should explain their fee structure and/or any expenses that the litigant may incur at the outset. The litigant should also be made aware if there is a potential risk that costs may be awarded against them and the circumstances in which that may happen.

k)   Never guarantee an outcome. Anything can happen in court. Expect the unexpected and advise the litigant to do likewise.

l)    Advise the litigant of the emotional support mechanisms available to them, including the services of ParentlinePlus (0808 800 2222), the Samaritans (08457 909090) and Saneline (0845 767 8000). All offer confidential telephone support services and may be useful to litigants who are isolated or feel unable to discuss their fears and stresses with family or friends. The litigant should not feel embarrassed in accessing such support. Acknowledge that the litigant is in an exceptionally stressful situation and explain that accessing support is a positive action that can assist them through the process.

m)  Be aware that the outcome of legal proceedings isn’t within your gift; you can only do your best for the litigant and cannot perform miracles.

3)      Recommended best practice – ethics

a)  It is always worth being clear as to what matters you will assist a litigant with, and what matters would go against your personal ethics. While false allegations are common in family law cases, if you become aware or suspect that the litigant has been guilty of one of the following acts, be clear as to whether or not you would wish to continue to assist them:

i)    Child abuse, neglect or sexual assault;

ii)   Rape;

iii)  Domestic violence;

iv)  Wishing to unreasonably marginalise the child’s other parent or extended family;

v)   Having plans or intentions that go against the child’s best interests.

This is by no means an exhaustive list.

b)   If you become aware that the litigant poses a genuine threat to any adult or child, we strongly recommend you contact the police or social services.

c)   Consider what course of action you would take if the litigant expresses suicidal thoughts. Know the number for the Samaritans (08457 909090) and if the litigant expresses that they are having problems coping with the stress of proceedings, suggest they speak to their GP. While an MF inevitably becomes part counsellor, recommend that the litigant seeks proper counselling and emotional support from a qualified practitioner if it is needed.

4)    Boundaries

Personal boundaries are important for anyone in an advisory or counselling role. Consider:

a)   When is an acceptable time for you to be contacted? It is worth informing the litigant of when they can contact you e.g. between the hours of 6pm and 8pm. Keep a home/work balance and try not to let assisting others encroach on your time with your own family.

b)   Having a separate landline or using a mobile phone for the purpose of litigants being able to contact you.

c)   Your own wellbeing. Inevitably, there will be some cases where you will leave court upset at the outcome of proceedings, and feeling empathy for the litigant. In the counselling profession, therapists often have a ‘buddy’ who is similarly experienced. While recognising and adhering to matters of court confidentiality, do seek to have a trustworthy, impartial and responsible individual who you can discuss things with.

d)   Personal safety. Some MFs assist with cases throughout the United Kingdom. Unless you know the litigant, you should treat them as you would any stranger:

i)    Consider meeting litigants at a neutral venue to discuss their case.

ii)   When assisting a member of the opposite sex, and if overnight accommodation is required prior to court attendance, consider if it would be more appropriate to stay in a hotel or bed and breakfast accommodation.

iii)  If staying at a litigant’s home, inform a family member or friend where you are staying, when you expect to return home, and provide them with a contact telephone number.

iv)  Be prepared that if a case does not go in the litigant’s favour, you may experience their anger and distress.

5)    Know your Local Services        

Be aware of local services that might be of assistance to the litigant including:

a)     Parenting classes. Your local Sure Start may run courses which are subsidised or free of charge. Undertaking a parenting class may assist the litigant in showing their commitment to their child, and regardless, may benefit both the parent and the children of the family. FNF also run parenting workshops. Sure Start centres can be located from their website www.surestart.gov.uk or might contact your local Family Information Service, part of your local council.

b)     Children and infant focussed first aid classes. St John’s Ambulance runs these (www.sja.org.uk). Taking such a class may help alleviate the other parent’s anxieties, and further demonstrate the litigant’s commitment to their children. It is worth contacting your local Sure Start to see if they organise subsidised or free classes.

c)     A local counsellor. Inevitably, you will come across litigants who would benefit from professional counselling support. Additionally, consider setting up a referral relationship with the counsellor. You can find a local counsellor via the British Association for Counselling and Psychotherapy (BACP) website www.bacp.co.uk.

d)    Anger management classes. If the litigant admits to difficulties in managing their anger, their willingness to seek professional help may count in their favour.

e)     Mediation services.

f)      Relate (relationship) counsellors. You may see a litigant at a stage when their relationship may still be saved. To find your nearest Relate counsellor, call 0300 100 1234.

g)     Services for single parents. Whether it be social meetings, children’s clubs, playgroups, weekend activities or other advice and assistance, knowledge of such services will benefit the litigant.

6)    The litigant’s role in informing the court of their desire for the assistance of a MF

The litigant should be advised to write a letter to the court before the first hearing advising that he or she intends to be assisted by an MF. Ideally, this letter should be sent to the court in good time, or at least on arrival to the court and this should be handed to the Court Usher. The letter should include:

a)    That the LIP intends to represent themselves in court;

b)    That they intend to be assisted by an MF;

c)     The name of the MF;

d)     Any experience that the MF has;

e)    The case number;

f)     That the MF understands the guidance concerning the use of a McKenzie Friend and the matter of Court confidentiality;

g)    That the MF has no personal interest in the case.

h)    It is good practice to include a copy of the President’s Practice Guidance: McKenzie Friends (July 2010) with the letter, and this can be found at:

President's Guidance

Ideally, the MF should provide this letter to the litigant, but written for them and in the litigant’s name, and have the litigant sign it. Clearly, the letter should not be on the MF’s headed paper, as it is to be correspondence between the litigant and the Court.

7)    What a McKenzie Friend may not do

a)     An MF has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a MF.

b)     An MF is not entitled to address the court, nor examine any witnesses. A MF who does so becomes an advocate and requires the grant of a right of audience.

c)     An MF may not act as the agent of the litigant in relation to the proceedings nor manage the litigant’s case outside court, for example, by signing court documents.

d)     An MF must treat court proceedings and any information given to them in preparation for or during proceedings as confidential.

8)      Rights of audience and rights to conduct litigation

In certain circumstances, the court may grant a MF the right to speak in Court on behalf of their client. This is called a ‘right of audience’. This may include making verbal submissions to the Judge, and cross examining witnesses. The President of the Family Court provides the following guidance on rights of audience for MFs:

a)    Sections 27 and 28 of the Courts and Legal Services Act 1990 (the Act) respectively govern rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant unqualified persons, including MFs, such rights in relation to particular proceedings.

b)    While the court should be slow to grant any application under s.27 or s.28 of the Act from a MF, it should be prepared to do so for good reason bearing in mind the general objective set out in section 17(1) and the general principle set out in section 17(3) of the Act and all the circumstances of the case. Such circumstances are likely to vary greatly: see paragraphs 40-42 of the judgment of Munby J. in Re N (A child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam).

Re N (A child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam)

40. But this is not to say that, as a general principle, such an order can be made only in ‘exceptional’ circumstances. As Clarke LJ pointed out in Clarkson v Gilbert [2000] 2 FLR 839 at para [28], that would be, in effect, to read restrictive words into a statute which confers an unfettered discretion. Moreover, both Waller LJ (at para [26]) and Clarke LJ (at para [30]) were quite clear that the judge at first instance (Eady J) had misdirected himself in law and applied the “wrong test” in saying that such an order could be made only in exceptional circumstances.

41. As Clarke LJ said (at para [28]), “There is a spectrum of different circumstances which may arise so that it is difficult to lay down precise guidelines. Cases will vary greatly.” He added (at para [29]), “All will depend upon the circumstances.” At one end of the spectrum there will be the ‘professional’ McKenzie friend who acts also as an advocate, the person, as Lord Woolf CJ put it (at para [20]), “setting themselves up as an unqualified advocate” or, as Clarke LJ put it (at para [28]), “holding himself out as providing advocacy services, whether for reward or not.” There, as a general principle, the court will make an order only in exceptional circumstances. At the other end of the spectrum there will be the McKenzie friend who is the litigant’s spouse or partner, though even there, as Clarke LJ was careful to point out, the circumstances may vary widely. In between – and Mr Holden falls somewhere between the two ends of the spectrum though as it seems to me much nearer the spouse / partner McKenzie friend end of the spectrum than the ‘professional’ McKenzie friend advocate end of the spectrum – there will be a very wide range of circumstances which it is futile and indeed impossible to classify or categorise. One is, after all, faced with a spectrum and not, as some of Mr Bogle’s submissions tended to suggest, a set of pigeon holes. 

42. At the end of the day one has to remember that, as Lord Woolf CJ put it (at para [17]), “The overriding objective is that the courts should do justice.” And one also has to bear in mind, as he observed, the reality that legal aid is not available as readily as it was in the past, leading, as the President’s Guidance: McKenzie Friends [2008] 2 FLR 110 comments, to the growth of litigants in person in all levels of family court. Moreover, as the Guidance reminds us, “the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing.” Similarly, in my experience, there will be occasions – sometimes; sometimes not – when the grant of rights of audience to a McKenzie friend will, to adopt the President’s words, be of advantage to the court in ensuring the litigant in person receives a fair hearing. Sometimes, indeed, it will be essential if justice is to be done and, equally importantly, perceived by the litigant in person as having been done.

c)    If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an application must be made at the start of the hearing, or in advance of the hearing in writing, and copied to the other party.

9)  Financial and other Matters

a)    Alway inform the litigant if you are a fee charging McKenzie and if your assistance may or will result in the litigant incurring costs. Explain what matters are chargeable (such as assistance with case preparation, court paperwork and court attendance), what your charges are and what assistance may be free of charge (e.g. email advice). The litigant should know from the outset if a potential exists of your charging for assistance and the potential costs that they might incur.

b)    If the McKenzie Friend does not charge for their services, the litigant should at least offer to cover their expenses. These would include travelling and accommodation costs, and an amount of money to cover the cost of incidental expenses such as printer ink and phone calls. It is courteous to offer to ring the MF back and bear the cost of phone calls.

c)     Regardless of whether or not you charge for your services, provide the litigant with a summary of your experience if you are offering to act as their McKenzie Friend.

d)    In the event you have any criminal convictions or if there is anything in your past which, through association with you, might jeopardise the case of a litigant in person, you must declare this to the litigant..

x

Written by Michael Robinson and Jeff Botterill