McKenzie Friends |
McKenzie Friends are lay legal advisors who assist people who decide to represent themselves in court. There are a number of reasons why someone may wish to manage their own case with the assistance of a lay advisor, rather than use the services of a solicitor and barrister. The most common are:
1. They may not qualify for legal aid, may not be able to afford a solicitor, but still need advice.
2. They may feel that they can better present their own case, having a more detailed knowledge of it than a solicitor would.
3. They may have become disillusioned with the legal profession.
The following best practice guidance makes references to the President of the Family Division of the Court's own Guidance for McKenzie Friends and has been added to by Jeff Botterill (an experienced McKenzie Friend) and myself to assist new McKenzie Friends in better understanding their role in assisting litigants in person. It should also prove to be of assistance to Litigants in Person in understanding what a McKenzie Friend may and may not do.
The President's own guidance is set out below our own.
McKenzie Friend - Code of Conduct / Guidance
1) The role of the McKenzie Friend (MF)
In Court, according to the directions of the President of the Family Division of the courts dated 14th October 2008, a 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 Guidance: McKenzie Friends (October 2008) with the letter, and this can be found at:
http://www.familylawweek.co.uk/site.aspx?i=ed26548
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.
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xc) 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..
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Written by Michael Robinson and Jeff Botterill
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President's Guidance: McKenzie Friends
Due to the increasing number of litigants (people going to court) who choose to act in person and with the assistance of a McKenzie Friend, in April 2008, the President of the Family Division of the Courts issued new guidance for the courts.
Following the recent decision of Munby J in the case of Re N (A child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam), the President’s Guidance of 14th April 2008 required amendment to the penultimate paragraph headed “Rights of Audience”. The Guidance of 14th April was therefore withdrawn and reads as follows in its reissued form.
October 2008
In the light of the growth of litigants in person in all levels of family court, the President issues this guidance, which supersedes that of 13th May 2005. [2005] Fam Law 405, and is to be regarded as a reminder that the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing.
· A litigant who is not legally represented has the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (“MF”). This is the case even where the proceedings relate to a child and are being heard in private.
· A litigant in person wishing to have the help of a MF should be allowed such help unless the judge is satisfied that fairness and the interests of justice do not so require. The presumption in favour of permitting a MF is a strong one.
· A litigant in person intending to make a request for the assistance of a MF should be encouraged to make the application as soon as possible indicating who the MF will be.
· It will be most helpful to the litigant in person and to the court if the particular MF is in a position to advise the litigant in person throughout the proceedings.
· A favourable decision by the court, allowing the assistance of a MF, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the MF or on the ground that the MF’s continuing presence will impede the efficient administration of justice.
· When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request.
· The litigant in person should not be required to justify his desire to have a MF; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend.
· Factors which should not outweigh the presumption in favour of allowing the assistance of a MF include
§ the fact that proceedings are confidential and that the court papers contain sensitive information relating to the family’s affairs
§ the fact that the litigant in person appears to be capable of conducting the case without the assistance of a MF
§ the fact that the litigant in person is unrepresented through choice
§ the fact that the objecting party is not represented
§ the fact that the hearing is a directions hearing or case management hearing
§ the fact that a proposed MF belongs to an organisation that promotes a particular cause
· The proposed MF should not be excluded from the courtroom or chambers while the application for assistance is made, and the MF should ordinarily be allowed to assist the litigant in person to make the application.
· The proposed MF should produce a short curriculum vitae or other statement setting out relevant experience and confirming that he/she has no interest in the case and understands the role of a MF and the duty of confidentiality.
· If a court decides in the exercise of its discretion to refuse to allow a MF to assist the litigant in person, the reasons for the decision should be explained carefully and fully to both the litigant in person and the would-be MF.
· The litigant may appeal that refusal, but the MF has no standing to do so.
· The court may refuse to allow a MF to act or continue to act in that capacity where the judge forms the view that the assistance the MF has given, or may give, impedes the efficient administration of justice. However, the court should also consider whether a firm and unequivocal warning to the litigant and/or MF might suffice in the first instance.
· Where permission has been given for a litigant in person to receive assistance from a MF in care proceedings, the court should consider the attendance of the MF at any Advocates’ Meetings directed by the court, and, with regard to cases commenced after 1.4.08, consider directions in accordance with paragraph 13.2 of the Practice Direction. Guide to Case Management in Public Law Proceedings.
· The litigant in person is permitted to communicate any information, including filed evidence, relating to the proceedings to the MF for the purpose of obtaining advice or assistance in relation to the proceedings.
· Legal representatives should ensure that documents are served on the litigant in person in good time to seek assistance regarding their content from the MF in advance of any hearing or advocates’ meeting.
What a McKenzie Friend May Do
· Provide moral support for the litigant
· Take notes
· Help with case papers
· Quietly give advice on:
§ points of law or procedure;
§ issues that the litigant may wish to raise in court;
§ questions the litigant may wish to ask witnesses.
What a McKenzie Friend May Not Do
· A 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.
· A 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.
· A 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.
Rights of Audience and rights to conduct litigation
· Sections 27 & 28 of the Courts and Legal Services Act 1990 govern exhaustively rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant lay individuals such rights.
· A court may grant an unqualified person a right of audience in exceptional circumstances and after careful consideration. 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.
· 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.
· 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).
· 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.
Personal Support Unit & Citizens’ Advice Bureau
· Litigants in person should also be aware of the services provided by local Personal Support Units and Citizens’ Advice Bureaux. The PSU at the Royal Courts of Justice in London can be contacted on 020 7947 7701, by email at cbps@bello.co.uk or at the enquiry desk. The CAB at the Royal Courts of Justice in London can be contacted on 020 7947 6564 or at the enquiry desk.
McKenzie Friends: References and Authorities |
· Collier v Hicks [1831] 2B & Ad.663, 669
· McKenzie v McKenzie [1970] 3 All ER1034
· Re G (A Minor) (Chambers Hearing: Assistance) [1991] Note [1999] 1 WLR 1828
· R v Leicester City Justices ex parte Barrow and ors [1991] 3 All ER 935
· D v S (Rights of Audience) [1997] 1FLR 724 (CA)
· Re H (Minors) (Chambers Proceedings: McKenzie Friend) [1997] 3 FCR 618 (CA), ex parte Pelling
· Re H (Chambers Proceedings: McKenzie Friend) [1997] 2 FLR 423
· President’s Guidance Note [1999]
· R v Bow County Court ex parte Pelling [1999] 2 FLR 1126, 4 All ER 751
· Milne v Kennedy & Others (11 Feb 99) (TLR) (CA)
· Clarkson v Gilbert [2000] 2 FLR 839 (CA)
· Paragon Finance PLC v Noueiri (Practice Note) [2001] 1 WLR 2357 (CA)
· Re H (McKenzie Friend: Pre trial determination) [2002] 1 FLR 39
· In The Matter of the Children of Mr O’Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759, [2005] 2 FLR 967
· President’s Guidance: McKenzie Friends [April 2008]
· Re N (A child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam).
· President’s Guidance: McKenzie Friends [October 2008]
· The Family Proceedings (Amendment No 4) Rules 2005
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