Mc kenzie friend in family proceedings

09/10/2008 19:51

 

N (A Child) [2008] EWHC 2042 (Fam)

Judgment concerning rights of audience for McKenzie Friends in private children law proceedings.

In the course of contact proceedings both the father and the mother had been assisted by McKenzie Friends for part of the proceedings. It was common ground that Pauffley J had allowed both to speak to the court in earlier hearings. However at the final hearing of s8 proceedings the father was represented by counsel, assisted by the erstwhile McKenzie Friend, Dr Pelling now acting as instructing solicitors clerk. They objected to the mother's continuing representation by her McKenzie Friend on the grounds that: i) the mother had not made the relevant application and ii) the circumstances were not exceptional enough to allow such representation.

In this judgment Munby J reviews the authorities, current practice in court and Practice Directions governing the use of McKenzie Friends. He concludes that the views set out in Clarkson v Gilbert apply so that i) there is no right of audience as such for McKenzie Friends; ii) the judge has a wide discretion to allow a McKenzie Friend rights of audience and iii) the circumstances in allowing rights of audience do not have to be exceptional. He adds that "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."

He therefore granted rights of audience for the mother's McKenzie Friend and notes that, if he needed to be satisfied that the circumstances were exceptional (which in his judgment he did not), then the case met that standard. The judgment concludes with further discussion on whether the judgment should be anonymised.
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Neutral Citation Number: [2008] EWHC 2042 (Fam)
Case No: FD03P02333
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Public)

Royal Courts of Justice
Strand, London, WC2A 2LL

Further cases as follows.

 

The Court of Appeal has recently taken the opportunity of reviewing the legal position of McKenzie friends in three conjoined appeals reported as In the matter of the children of Mr O'Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759, [2005] 2 FLR 967. In two of the appeals the issue was the refusal of a judge to allow the father's McKenzie friend to accompany him in chambers and in the other the issue was the question of the extent to which the papers in the proceedings could be disclosed to the McKenzie friend in the light of the restrictions on disclosure then contained in the Family Proceedings Rules 1991 (FPR), r.4.23.

In a judgment which contained some quite strong criticisms of two of the first instance judges the Court of Appeal took the opportunity of emphasising that the presumption in favour of permitting a McKenzie friend is a strong one. They also pointed out that the right to a fair hearing under article 6.1 of the European Convention on Human Rights is engaged on any application by a litigant in person for the assistance of a McKenzie friend.

The court observed in particular that—

  • 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. The presumption in favour of allowing a litigant in person the assistance of a McKenzie friend is very strong. Such a request should only be refused for compelling reasons and should a judge identify such reasons, she/he must explain them carefully and fully to both the litigant in person and the would-be McKenzie friend.
  • 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 she/he is to be involved, will be most useful to the litigant in person and to the court if she/he is in a position to advise the litigant throughout.
  • It is not good practice to exclude the proposed McKenzie friend from the courtroom or chambers whilst the application by the litigant in person for her/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 her/his appointment in the first place. In any event, it is helpful for the proposed McKenzie friend to be present so that any concerns about him can be ventilated in her/his presence, and so that the judge can satisfy herself/himself that the McKenzie friend fully understands her/his role (and in particular the fact that disclosure of confidential court documents is made to her/him for the purposes of the proceedings only) and that the McKenzie friend will abide by the court's procedural rules.
  • 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 herself/himself, confirming that she/he has no personal interest in the case, and that she/he understands both the role of the McKenzie friend and the court's rules as to confidentiality.
  • The following do not, of themselves, constitute 'compelling reasons' for refusing the assistance of a McKenzie friend:

(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) that the litigant in person 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) 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) that the proceedings are confidential and that the court papers contain sensitive information relating to the family's affairs.

The court also expressed the view that there was no reason in principle why a litigant in person should not show the court papers to his court-sanctioned McKenzie friend, provided that the latter appreciated that disclosure was being made only for the purpose of enabling the litigant effectively to present his case. This aspect of the court's judgment is now of historical interest only following the introduction of an entirely new provision in the FPR, namely r.10.20A. This is quite a lengthy rule which governs the communication of information relating to any proceedings held in private to which the FPR apply where the proceedings—

(1) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(2) are brought under the Children Act 1989; or
(3) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.

The rule expressly permits the communication of any information relating to the proceedings by a party to the proceedings to a 'lay adviser or McKenzie friend'. A lay adviser is defined by the rule as 'a non-professional person who gives lay advice on behalf of an organisation in the lay advice sector' and McKenzie friend as 'any person permitted by a court to sit beside an unrepresented litigant in court to assist that litigant by prompting, taking notes and giving him advice'.

The Court of Appeal referred in passing to the fact that in R v Leicester City Justices and Another ex parte Barrow and Another [1991] 2 QB 260 at 289 Lord Donaldson of Lymington MR expressed -

'the fervent hope … that we shall hear no more of "McKenzie friends" as if they were a form of unqualified legal assistant known to the law. Such terminology obscures the real issue which is fairness or unfairness. Let the "McKenzie friend" join the "Piltdown man" in decent obscurity.'

The court noted, however, that the passage of time had demonstrated that the term McKenzie friend had become well-recognised and understood by lawyers and litigants alike, and expressed the view that the term was here to stay. That seems to be confirmed by the fact that the McKenzie friend has now earned himself a mention in rules of court.

 

 

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