Justice For Families

McKenzie Friends: Revised Guidance
In light of a recent case of Munby J's the President has issue revised guidance on the use of McKenzie friends. The complete guidance is here (as a pdf file) .

http://www.judiciary.gov.uk/docs/pfd_gu ... t_2008.pdf

The amended paragraph is as follows:

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) .
Posted by jacquig at 19:02
Labels: practice and procedure

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.

http://flwblog.lawweek.co.uk/2008/10/mc ... dance.html

http://www.familylawweek.co.uk/site.aspx?i=ed25493

Can anyone help me please?

What it is, I was a lay representative for my daughter who is LIP at the last hearing. It's the final hearing soon, and going by the new rules (I have read them but am still not sure) would I be able to represent her again and what are the chances of me being allowed a 'Right of Audience'?

Thanks in advance

sueb

sueb wrote:Can anyone help me please?

What it is, I was a lay representative for my daughter who is LIP at the last hearing. It's the final hearing soon, and going by the new rules (I have read them but am still not sure) would I be able to represent her again and what are the chances of me being allowed a 'Right of Audience'?

Thanks in advance

sueb

There is no rights of audience for a MF but there are good arguments for those rights, & if you have done so previously then it should be easier to get rights again.

These new MF rules I believe should make it easier too.

If you have problems getting rights then there is a good case law by Lord Munby:

http://www.familylawweek.co.uk/site.aspx?i=ed25493

You shouldn't be an MKF if you are representing your daughter. MF's should have no vested interests in the case and if you look at the guidelines it does mention this.

MF do not automatically have the right to verbally represent people i.e. hold rights of audience, however the revised guidelines do make it clear to judges that giving an MF rights of audience can help considerably and it does have the backing of Sir Mark Potter.

Thank you both

Fassit

My daughters husband objected last time, but the judge did allow me in.

They bought up the problem of me being a witness last time, but quite honestly my daughter has plenty of evidence without me, and I am in the best position to rip his statement to pieces, as I am aware of all the circumstances because my daughter and the children were living with me.

Do you think I should approach the court now (10 days before case) to make sure or will I not be able to find out until the day of the case?

sueb

Do you think I should approach the court now (10 days before case) to make sure or will I not be able to find out until the day of the case?

Wait until the day, if you have the same judge it probably won't be a problem anyway.

That's what worries me Andrew, there has been a different judge at each hearing. 4 up to yet.

No one has a clue about what has gone on, certainly not us. My daughters Solicitor should be struck off. We are only just starting to find out how much she messed the case up, and it's been going through court for 16 months now.

The new guidelines (or the old for that matter) do not exclude relatives from assisting a litigant in person who is also a family member.

There are already a few known cases where family act as legal advisor, support and Mckenzie friend, in some cases (public law) there is more than one relative who is a Mckenzie friend.

The upside of having family is that the family generally know the case situation better. The obvious downside is that the Mckenzie friend can't give evidence in support of any party (conflict of interest) The Judge might make an exception but to be fair, the litigant reasonably needs to choose between having their family member as a Mckenzie friend or witness.

The other downside is if the case goes "wrong", the family member being a Mckenzie friend might be blamed.

--nr--

justic scales wrote:The other downside is if the case goes "wrong", the family member being a Mckenzie friend might be blamed.
--nr

True, but has my daughter can't get legal aid and is not up to handling it herself, it's a chance I'll have to take.

Thanks everyone for all you help.

Please refer to the guidance. Technically a family member can be an MF however the words the MF "should have no interest in the case" are also listed in the guidance. A barrister could argue that because sueb is a family member she has an interest in the case.
However.......

Sueb in answer to your question;
"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".
"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"

Therefore once you have been "approved" as an MF, then other than misconduct you cannot be asked to leave and the other party cannot object. You should be referred to on one of the orders at the top "Mrs X litigant in person assisted by a MF" if a judge is in any doubt that you had previously been allowed into court.

fassitangels wrote:Therefore once you have been "approved" as an MF, then other than misconduct you cannot be asked to leave and the other party cannot object. You should be referred to on one of the orders at the top "Mrs X litigant in person assisted by a MF" if a judge is in any doubt that you had previously been allowed into court.

On the last order, it was not mentioned that I had been in court.
We have written to the court querying that, amongst other things, and had no reply.

Hi All

Has anyone any advice they can offer on what to expect at a Final Hearing. As far as we aware it will also be a Finding of Fact and Cafcass will also be present.

Thanks in advance for any help or advice

sueb

http://www.judiciary.gov.uk/docs/pfd_gu ... t_2008.pdf

This is the link to the latest guidelines that are being given out to MK's.

President’s Guidance: McKenzie Friends

Date 14th October 2008

In the light of 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 requires amendment to the penultimate paragraph headed “Rights of Audience”. The Guidance of 14th April is therefore now withdrawn and reads as
follows in its reissued form.
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

o the fact that proceedings are confidential and that the court papers
contain sensitive information relating to the family’s affairs

o the fact that the litigant in person appears to be capable of conducting
the case without the assistance of a MF

o the fact that the litigant in person is unrepresented through choice

o the fact that the objecting party is not represented

o the fact that the hearing is a directions hearing or case management
hearing

o 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:

o points of law or procedure;

o issues that the litigant may wish to raise in court;

o 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 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.

LOL this is what I posted a couple of weeks ago!

Thank you all for your help up to yet, and wonder if anyone can help me again.

Have any of you received your court bundle, and what did it contain?
This is in a private law case.

Thank you in advance.