Practice Guidance: McKenzie Friends (Civil and Family Courts)
The Custody Minefield Factsheets –
Smartphone Series (optimised for smartphone users). Copyright Michael Robinson
2010. Crown Copyright material
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1) This Guidance applies
to civil and family proceedings in the Court of Appeal (Civil Division), the
High Court of Justice, the County Courts and the Family Proceedings Court in
the Magistrates’ Courts.1 It is issued as guidance (not as a Practice
Direction) by the Master of the Rolls, as Head of Civil Justice, and the
President of the Family Division, as Head of Family Justice. It is intended to
remind courts and litigants of the principles set out in the authorities and
supersedes the guidance contained in Practice Note (Family Courts: McKenzie
Friends) (No 2) [2008] 1 WLR 2757, which is now withdrawn.2 It is issued in
light of the increase in litigants-in-person (litigants) in all levels of the
civil and family courts.
The Right to Reasonable Assistance
2) Litigants have the
right to have reasonable assistance from a layperson, sometimes called a
McKenzie Friend (MF). Litigants assisted by MFs remain litigants-inperson. MFs have no independent right to provide
assistance. They have no right to act as advocates or to carry out the conduct
of litigation.
What McKenzie Friends may do
3) MFs may: i) provide
moral support for litigants; ii) take notes; iii) help with case papers; iv)
quietly give advice on any aspect of the conduct of the case.
What McKenzie Friends may not do
4) MFs may not: i) act as
the litigants’ agent in relation to the proceedings; ii) manage litigants’
cases outside court, for example by signing court documents; or iii) address
the court, make oral submissions or examine witnesses.
Exercising the Right to Reasonable Assistance
5) While litigants
ordinarily have a right to receive reasonable assistance from MFs the court
retains the power to refuse to permit such assistance. The court may do so
where it is satisfied that, in that case, the interests of justice and fairness
do not require the litigant to receive such assistance.
6) A litigant who wishes
to exercise this right should inform the judge as soon as possible indicating
who the MF will be. The proposed MF should produce a short curriculum vitae or
other statement setting out relevant experience, confirming that he or she has
no interest in the case and understands the MF’s role and the duty of
confidentiality.
7) If the court considers
that there might be grounds for circumscribing the right to receive such
assistance, or a party objects to the presence of, or assistance given by a MF,
it is not for the litigant to justify the exercise of the right. It is for the
court or the objecting party to provide sufficient reasons why the litigant
should not receive such assistance.
8) When considering
whether to circumscribe the right to assistance or refuse a MF permission to
attend the right to a fair trial is engaged. The matter should be considered
carefully. The litigant should be given a reasonable opportunity to argue the
point. The proposed MF should not be excluded from that hearing and should normally
be allowed to help the litigant.
9) Where proceedings are
in closed court, i.e. the hearing is in chambers, is in private, or the
proceedings relate to a child, the litigant is required to justify the MF’s
presence in court. The presumption in favour of
permitting a MF to attend such hearings, and thereby enable litigants to
exercise the right to assistance, is a strong one.
10) The court may refuse to allow a
litigant to exercise the right to receive assistance at the start of a hearing.
The court can also circumscribe the right during the course of a hearing. It
may be refused at the start of a hearing or later circumscribed where the court
forms the view that a MF may give, has given, or is giving, assistance which
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.
11) A decision by the court not to
curtail assistance from a MF should be regarded as final, save on the ground of
subsequent misconduct by the MF or on the ground that the MF’s continuing
presence will impede the efficient administration of justice. In such event the
court should give a short judgment setting out the reasons why it has curtailed
the right to assistance. Litigants may appeal such decisions. MFs have no
standing to do so.
12) The following factors should not
be taken to justify the court refusing to permit a litigant receiving such
assistance:
(i) The case or application is simple
or straightforward, or is, for instance, a directions or case management
hearing;
(ii) The litigant appears capable of
conducting the case without assistance;
(iii) The litigant is unrepresented through
choice;
(iv) The other party is not represented;
(v) The proposed MF belongs to an organisation that promotes a particular cause;
(vi) The proceedings are confidential and the court papers
contain sensitive information relating to a family’s affairs
13) A litigant may be denied the
assistance of a MF because its provision might undermine or has undermined the
efficient administration of justice. Examples of circumstances where this might
arise are: i) the assistance is being provided for an improper purpose; ii) the
assistance is unreasonable in nature or degree; iii) the MF is subject to a
civil proceedings order or a civil restraint order; iv) the MF is using the
litigant as a puppet; v) the MF is directly or indirectly conducting the
litigation; vi) the court is not satisfied that the MF fully understands the
duty of confidentiality.
14) Where a litigant is receiving
assistance from a MF in care proceedings, the court should consider the MF’s
attendance 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.
15) Litigants are permitted to
communicate any information, including filed evidence, relating to the
proceedings to MFs for the purpose of obtaining advice or assistance in
relation to the proceedings.
16) Legal representatives should
ensure that documents are served on litigants in good time to enable them to
seek assistance regarding their content from MFs in advance of any hearing or
advocates’ meeting.
17) The High Court can, under its
inherent jurisdiction, impose a civil restraint order on MFs who repeatedly act
in ways that undermine the efficient administration of justice.
Rights of audience and rights to conduct litigation
18) MFs do not have a right of
audience or a right to conduct litigation. It is a criminal offence to exercise
rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or,
in the case of an otherwise unqualified or unauthorised
individual (i.e., a lay individual including a MF), the court grants such
rights on a case-by-case basis.3
19) Courts should be slow to grant any
application from a litigant for a right of audience or a right to conduct
litigation to any lay person, including a MF. This is because a person
exercising such rights must ordinarily be properly trained, be under
professional discipline (including an obligation to insure against liability
for negligence) and be subject to an overriding duty to the court. These
requirements are necessary for the protection of all parties to litigation and
are essential to the proper administration of justice.
20) Any application for a right of
audience or a right to conduct litigation to be granted to any lay person
should therefore be considered very carefully. The court should only be
prepared to grant such rights where there is good reason to do so taking into
account all the circumstances of the case, which are likely to vary greatly.
Such grants should not be extended to lay persons automatically or without due
consideration. They should not be granted for mere convenience.
21) Examples of the type of special
circumstances which have been held to justify the grant of a right of audience
to a lay person, including a MF, are: i) that person is a close relative of the
litigant; ii) health problems preclude the litigant from addressing the court,
or conducting litigation, and the litigant cannot afford to pay for a qualified
legal representative; iii) the litigant is relatively inarticulate and
prompting by that person may unnecessarily prolong the proceedings.
22) It is for the litigant to persuade
the court that the circumstances of the case are such that it is in the
interests of justice for the court to grant a lay person a right of audience or
a right to conduct litigation.
23) The grant of a right of audience
or a right to conduct litigation to lay persons who hold themselves out as
professional advocates or professional MFs or who seek to exercise such rights
on a regular basis, whether for reward or not, will however only be
granted in exceptional circumstances. To do otherwise would tend to subvert the
will of Parliament.
24) If a litigant wants a lay person
to be granted a right of audience, an application must be made at the start of
the hearing. If a right to conduct litigation is sought such an application
must be made at the earliest possible time and must be made, in any event,
before the lay person does anything which amounts to the conduct of litigation.
It is for litigants to persuade the court, on a case-by-case basis, that the
grant of such rights is justified.
25) Rights of audience and the right
to conduct litigation are separate rights. The grant of one right to a lay
person does not mean that a grant of the other right has been made. If both
rights are sought their grant must be applied for individually and justified
separately.
26) Having granted either a right of
audience or a right to conduct litigation, the court has the power to remove
either right. The grant of such rights in one set of proceedings cannot be
relied on as a precedent supporting their grant in future proceedings.
Remuneration
27) Litigants can enter into lawful
agreements to pay fees to MFs for the provision of reasonable assistance in
court or out of court by, for instance, carrying out clerical or mechanical
activities, such as photocopying documents, preparing bundles, delivering
documents to opposing parties or the court, or the provision of legal advice in
connection with court proceedings. Such fees cannot be lawfully recovered from
the opposing party.
28) Fees said to be incurred by MFs
for carrying out the conduct of litigation, where the court has not granted
such a right, cannot lawfully be recovered from either the litigant for whom
they carry out such work or the opposing party.
29) Fees said to be incurred by MFs
for carrying out the conduct of litigation after the court has granted such a
right are in principle recoverable from the litigant for whom the work is
carried out. Such fees cannot be lawfully recovered from the opposing party.
30) Fees said to be incurred by MFs
for exercising a right of audience following the grant of such a right by the
court are in principle recoverable from the litigant on whose behalf the right
is exercised. Such fees are also recoverable, in principle, from the opposing
party as a recoverable disbursement: CPR 48.6(2) and 48(6)(3)(ii).
Personal Support Unit & Citizen’s Advice Bureau
31) Litigants 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.
Lord Neuberger of Abbotsbury, Master of the Rolls
Sir Nicholas Wall, President of the Family Division
12 July 2010
End Notes
1 References to
the judge or court should be read where proceedings are taking place under the
Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991, as a
reference to a justices’ clerk or assistant justices’ clerk who is specifically
authorised by a justices’ clerk to exercise the
functions of the court at the relevant hearing. Where they are taking place
under the Family Proceedings Courts (Childrens Act
1989) Rules 1991 they should be read consistently with the provisions of those
Rules, specifically rule 16A(5A).
2 R v Leicester
City Justices, ex parte Barrow [1991] 260, Chauhan
v Chauhan [1997] FCR 206, R v Bow County
Court, ex parte Pelling [1999] 1 WLR 1807, Attorney-General
v Purvis [2003] EWHC 3190 (Admin), Clarkson v Gilbert [2000] CP Rep
58, United Building and Plumbing Contractors v Kajla
[2002] EWCA Civ 628, Re O (Children) (Hearing
in Private: Assistance) [2005] 3 WLR 1191, Westland Helicopters Ltd v Sheikh
Salah Al-Hejailan (No 2) [2004] 2 Lloyd’s Rep
535. Agassi v Robinson (Inspector of Taxes) (No 2) [2006] 1 WLR 2126, Re
N (A Child) (McKenzie Friend: Rights of Audience) Practice Note [2008] 1
WLR 2743.
3 Legal Services Act
2007 s12 – 19 and Schedule 3.
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