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McKenzie Friends

What is a McKenzie Friend?

´McKenzie Friend´ is a term used to describe a person who assists someone who represents themselves in court.

Someone who represents themselves in court is referred to as a ´litigant-in-person´ (sometimes abbreviated to ´litigant´ or to the initials ´LIP´ or ´LiP´).

The McKenzie Friend´s role is normally restricted to helping the Litigant prepare their case for court, and once in court, quietly advising the Litigant, taking notes for them, and helping to organise their documents.

There are occasions when a McKenzie Friend can speak on the LiP´s behalf in court (this is called being granted ´Rights of Audience´), but only if granted permission to do so by the judge.

Why do people represent themselves?

There are a number of reasons why someone may wish to represent themselves in court. The most common are:

  1. They may not qualify for legal aid, may not be able to afford a solicitor;
  2. They may feel that they can better present their own case, having a more detailed knowledge of it than a solicitor;
  3. They may have become disillusioned with the legal profession.

In such circumstances, it is common to still want support, and a suitably experienced McKenzie Friend can explain the legal process, set out your choices with regard to alternative courses of action, and offer moral support when in court. Note that the choice of what action to take is yours, not theirs. The case remains yours to manage, and the decisions are yours to take.

A good McKenzie Friend will not be emotionally involved in your case, offer objective advice, and be a sounding board.

Am I entitled to the help of a McKenzie Friend?

Not automatically.

The Litigant in Person must ask the court´s permission for a McKenzie Friend to assist them. It is normal practice for the Litigant to write into the court requesting this, before a hearing. Sometimes, that letter is handed into court on the day of proceedings. Please note that the Litigant writes into court requesting this, and NOT the McKenzie Friend.

Common law has established that the court may only refuse a litigant-in-person permission for a McKenzie Friend if there are compelling reasons. This was explained in the following guidance, issued by the Court of Appeal in the case Mr O´Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759, [2005] 2 FLR 967 at paragraph 128:

  1. The purpose of allowing a litigant in person the assistance of a McKenzie friend is to further the interests of justice by achieving a level playing field and ensuring a fair hearing. We endorse the proposition that the presumption in favour of allowing a litigant in person the assistance of a McKenzie friend is very strong, and that such a request should only be refused for compelling reasons. Furthermore, should a judge identify such reasons, (s)he must explain them carefully and fully to both the litigant in person and the would-be McKenzie friend.

  2. Where a litigant in person wishes to have the assistance of a McKenzie friend in private family law proceedings relating to children, the sooner that intention is made known to the court and the sooner the court´s agreement for the use of the particular McKenzie friend is obtained, the better. In the same way that judicial continuity is important, the McKenzie friend, if he is to be involved, will be most useful to the litigant in person and to the court if he is in a position to advise the litigant throughout.

  3. We do not think it good practice to exclude the proposed McKenzie friend from the courtroom or chambers whilst the application by the litigant in person for his assistance is being made. The litigant who needs the assistance of a McKenzie friend is likely to need the assistance of such a friend to make the application for his appointment in the first place. In any event, it seems to us helpful for the proposed McKenzie friend to be present so that any concerns about him can be ventilated in his presence, and so that the judge can satisfy her / himself that the McKenzie friend fully understands his role (and in particular the fact that disclosure of confidential court documents is made to him for the purposes of the proceedings only ‐ as to which see paragraphs 132 to 138 below) and that the McKenzie friend will abide by the court´s procedural rules.

  4. In this context it will always be helpful for the court if the proposed McKenzie friend can produce either a short curriculum vitae or a statement about himself, confirming that he has no personal interest in the case, and that he understands both the role of the McKenzie friend and the court´s rules as to confidentiality.

  5. We have already stated that any litigant in person who seeks the assistance of a McKenzie friend should be allowed that assistance unless there are compelling reasons for refusing it. The following, of themselves, do not, in our judgment, constitute compelling reasons:

    1. that the litigant in person appears to the judge to be of sufficient intelligence to be able to conduct the case on his own without the assistance of a McKenzie friend;
    2. the fact that the litigant appears to the judge to have a sufficient mastery of the facts of the case and of the documentation to enable him to conduct the case on his own without the assistance of a McKenzie friend;
    3. the fact that the hearing at which the litigant in person seeks the assistance of a McKenzie friend is a directions appointment, or a case management appointment;
    4. (subject to what we say below) the fact that the proceedings are confidential and that the court papers contain sensitive information relating to the family´s affairs.

In 2010, the President of the Family Court issued the following guidance:

"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 a McKenzie Friend may not do

McKenzie Friends may not:

  1. act as the litigants´ agent in relation to the proceedings;
  2. manage litigants´ cases outside court, for example by signing court documents; or
  3. address the court, make oral submissions or question witnesses unless the trial judge grants them permission.

A McKenzie Friend may be granted permission to address the court (e.g. speak on the litigant´s behalf) in special circumstances, however the decision as to whether or not to grant this permission (called rights of audience) rests with the individual trial judge and is discretionary.

Rights of Audience

The President´s Guidance on McKenzie Friends sets out the circumstances where Rights of Audience may be granted to a McKenzie Friend.

Rights of audience will only be granted to a McKenzie Friend in special circumstances which include:

  1. that person is a close relative of the litigant;

  2. health problems preclude the litigant from addressing the court, or conducting litigation, and the litigant cannot afford to pay for a qualified legal representative;

  3. the litigant is relatively inarticulate and prompting by that person may unnecessarily prolong the proceedings.

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.

Somewhat perversely, it would seem the less articulate the litigant is in persuading the judge, the more likely the judge is to grant rights of audience.

See points 18-26 of the President´s Guidance.

In terms of Case Law, Munby J took a somewhat more liberal view in the case Re N (A child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam) (at paragraphs 40-42):

"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.

Reference Material

Mr O´Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759, [2005] 2 FLR 967 Read and Download

Practice Guidance: McKenzie Friends (Civil and Family Courts)Practice Guidance

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Michael Robinson © 2014

Family law information for parents whose children are resident in England and Wales

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