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If you are self repping you are entitled to request permission that you
have someone with you to assist you. That person is called a McKenzie
Friend. This is the practice direction which relates to McKenzie
Friends:
President’s Guidance: McKenzie Friends
14th April 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
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
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.
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
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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.
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