- What is a McKenzie Friend?
- When might a McKenzie friend be needed?
- Who can have a McKenzie Friend?
- Where did the principle of McKenzie friend start from?
- What can a McKenzie friend do?
- What McKenzie friends cannot do?
- What application form is required for the introduction of a litigation friend?
- Can the court refuse permission for a McKenzie friend to accompany you?
- What does the McKenzie Friend guidance say about the refusal of a guidance friend?
- What is a good reason for the court to refuse a McKenzie friend?
- Can McKenzie friends address the court?
- How can a McKenzie friend help me outside of court?
- Can someone with a legal background act as a family friend?
- What are fee charging McKenzie friends?
- How can specialists at Kabir Family Law assist me?
- Are McKenzie friends regulated?
A lot of people represent themselves in family law proceedings, this is largely due to cuts made in the availability of legal aid during family law proceedings. Due to these cuts some people are not able to financially afford fees for representation from Solicitors and Barristers. They may therefore resort to representing themselves to cut costs. Another reason why an individual may opt to represent themselves is that they may be confident in their own case and in getting their own points across to the court. An individual may feel they are best placed to deal with their own personal matter. Such people who self-represent themselves are known as a Litigant in Person. A Litigant in Person however may need some form of moral support and assistance during court hearings. In such times they may turn to a McKenzie Friend.
What is a McKenzie Friend?
The Oxford Learners Dictionaries provides a description for what is a McKenzie friend. This is defined as a person who attends a trial to assist somebody who does not have an official legal representative. Another definition of a McKenzie friend is someone who supports a party acting in person in court, assisting them and providing advice to the lay person. As proceedings go on, whether these relate to child custody, contact arrangements or financial settlement following a separation, a Litigant in Person may begin to feel alone and may even begin to suffer from anxiety, stress or feel that they are not at an equal footing due to not having the financial capacity to obtain legal and professional representation and assistance. In such cases a McKenzie friend might be needed to help you through the proceedings and court hearings.
When might a McKenzie friend be needed?
A McKenzie friend is often used in court to provide support, this could be in the form of moral support or general support such as taking notes and helping with court papers. A McKenzie friend could also be used where one party is a victim of domestic abuse and feels that, without support, they will not be in a position to fairly participate in proceedings. A McKenzie friend can also be used in situations where a party is suffering from anxiety or stress and feels they could do with the extra support or quite simply where one party may not be in a financially stable position to attend with legal representation.
Who can have a McKenzie Friend?
In family court proceedings a party who is not legally represented and is acting as a litigant in person can have a McKenzie friend. They will simply need to ask the court for such support and provide reasons for this. Parties who have the benefit of legal support and representation are unlikely to be provided permission for the use of a McKenzie friend to provide them additional moral support, given that they have adequate representation and legal support.
Where did the principle of McKenzie friend start from?
The notion of a McKenzie friend comes from the case of McKenzie v McKenzie 1970. In this case the husband who was initially legal represented was not able to continue with the representation prior to the hearing, due to financial difficulties. On the day of the hearing Mr. McKenzie took along Mr. Hangar, who was a qualified barrister in Australia but was not allowed to practice in England. The Judge ordered for Mr. Hangar to sit in the public gallery and only to discuss the case with Mr. McKenzie during the breaks or an adjournment.
Mr. McKenzie’s case did not go smoothly and as a result, he made an appeal to the Court of Appeal. The basis of the appeal was that he was denied representation and assistance at court. The Court of Appeal decided that the lower court had made an error and Mr. McKenzie was deprived of access to the assistance which he was allowed. Furthermore, a retrial of the original court was also ordered by the court of appeal. Since this case it was decided that a lay person can have the benefit of a McKenzie friend to support them during the proceedings.
What can a McKenzie friend do?
McKenzie friend Guidance has been published in the form of Practice Guidance by Lord Neuberger of Abbotsbury, Master of the Rolls & Sir Nicholas Wall, President of the family division on 12th July 2010. The guidance contains key information on McKenzie friends to illustrate what they can do. The McKenzie guidance specifically applies to civil and family proceedings and replaces the previous guidance in Practice Note (Family Courts: McKenzie Friends) (No 2) .
The Guidance confirms that a McKenzie friend can provide reasonable assistance but McKenzie friends cannot act as advocates or carry out the conduct of litigation. The McKenzie friend guidance clearly states that McKenzie friends can provide reasonable assistance by way of:
- Provide moral support for litigants. A McKenzie friend can sit with you at the front of the court as opposed to the back.
- Take notes.
- Help with case papers. Usually, papers in child proceedings are confidential and cannot be shown to other parties. However, such papers can be shown to your McKenzie friend and can be discussed with them. They can also assist you in getting your papers in the right order and help you find the right document.
- Quietly give advice on any aspect of the conduct of the case. This includes reminding you of the things to say or discuss with you the points you need to raise or may have forgotten to raise.
What McKenzie friends cannot do?
The McKenzie friend guidance states that a McKenzie friend may not:
- Act as litigant’s agent within proceedings
- Manage the litigant’s case outside court, i.e. by signing court documents, or
- Address the court, make oral submissions, or examine witnesses.
What application form is required for the introduction of a litigation friend?
In family proceedings there is no specific application form which needs to be completed and submitted to the court by a litigant in person. Quite simply a letter from the litigant in person to the court and the other parties involved indicating an intention to utilise the assistance of a McKenzie friend will suffice. This is somewhat different to criminal proceedings where by an application for a McKenzie Friend (Defendants assistance) will need to be completed and submitted.
The only requirement in family proceedings is that the McKenzie friend must have read and understood the McKenzie friend Guidance from the Presidents Office-McKenzie Friends. This guidance explains the role of a McKenzie friend as well as explaining what they can and cannot do. The McKenzie friend must be able to demonstrate that they understand their role and confirm they do not have any personal connections with the case.
Can the court refuse permission for a McKenzie friend to accompany you?
A McKenzie friend is allowed to attend court to support a litigant in person. However, the courts may refuse a McKenzie friend where there is a good reason. Where the court or the other party have issues with a McKenzie friend this will usually be addressed at the start of the hearing where the McKenzie friend can be present to understand why they are being refused.
What does the McKenzie Friend guidance say about the refusal of a guidance friend?
The guidance states that the following reasons are not good enough reasons for the refusal of a McKenzie friend:
- The case is simple, or the hearing is straightforward such as a direction hearing
- The litigant appears capable of conducting the case without assistance
- The litigant is not represented by their own choice
- The other party is also not represented
- The proceedings are confidential, and the McKenzie Friend may see confidential and sensitive information
What is a good reason for the court to refuse a McKenzie friend?
In order to refuse a McKenzie friend the court must have a good reason. This would usually involve cases where the conduct of a McKenzie friend is undermining the administration of justice. This means where allowing such support is affecting the courts ability to carry out their role. The following may be deemed as good reasons for the refusal :
- Where the McKenzie friend is using the party they are supporting as a puppet. This is usually where they also know the other party in the family proceedings and indirectly maybe using the party they are supporting to provide unfair advantage to the other party or where they are likely to benefit themselves from the proceedings whether directly or indirectly.
- The McKenzie friend is conducting the case on behalf of the party. This could be directly by trying to advocate, or indirectly by getting their own points across which has no bearing in the case.
- Where a McKenzie friend is subject to civil proceedings the court may refuse them permission to participate in the proceedings.
- Where a McKenzie friend is unable to understand the duty of confidentiality and it is likely they are releasing confidential information either directly from the court proceedings or indirectly from the documents to other people who are not parties to the proceedings.
Can McKenzie friends address the court?
Speaking in court is widely known as rights of audience or advocacy. This is a right which a McKenzie friend is not automatically provided, they are not allowed to talk to the Judge or address the court given that they are not authorised to conduct litigation. It is also seen as a criminal offence to conduct litigation or speak in the court on behalf of somebody else without having the relevant qualifications or being authorised.
In some instances a McKenzie friend may be allowed rights of audience to speak to the court where the litigant in person party has specifically made an application for such. However the courts are reluctant to grant such rights to a lay person who is neither qualified or trained and limit such applications where there is exceptional circumstances. These rights are granted under Sections 27 & 28 of the Courts and Legal Services Act 1990.
Such circumstances may be:
- Where there are health problems with a litigant in person. This is where they may have issues with speaking to the court in front of the other party. This could be due to a medical reason or due \to being as a result of any abuse they may have endured from the opposing party. They must also not be represented by a legal professional such as a Solicitor or Barrister which is usually due to funding issues.
- Where the person is a close relative who is fully aware of your situation and can be seen as acting fairly and purely in your best interests without misleading the court.
- If the court hearing is likely to be prolonged and delayed due to you having issues with struggling to communicate with the court despite with assistance, then the courts may allow the person to exercise rights of audience and speak to the court on your behalf.
How can a McKenzie friend help me outside of court?
People often associate McKenzie friends with only assisting in court, however such support can also be beneficial to you before you commence court proceedings. Having knowledgeable and experienced support can work wonders as well as helping you understand your case better. A McKenzie friend can assist you with you completing court papers and you preparing your documents. They can also advise on the process ahead and give you information on how to best prepare your matter. Despite you not having the financial ability to obtain legal representation you still maybe in a position to positively affect the outcome of your family law matter.
Can someone with a legal background act as a family friend?
A McKenzie friend does not need to be a family member or an actual friend. In fact, a solicitor, barrister or someone with legal experience can act as a McKenzie friend. If you are using a solicitor or a barrister, they will need to comply with the McKenzie friend guidance and as such may not be able to speak to the court on your behalf unless an application is made. The only person who cannot act as a McKenzie friend is a party to the family proceedings or an individual who is acting the capacity of a witness.
What are fee charging McKenzie friends?
Fee charging McKenzie friends are usually from businesses that provide family law unbundling solicitors within the remit of the McKenzie friend guidance. They will charge a fee (albeit not as much as solicitors) for providing their services. These services usually include offering non legal advice and guidance, assisting you with organising your papers, helping with research, and attending court with you to provide moral and personal support.
How can specialists at Kabir Family Law assist me?
At Kabir Family Law our specialists have a vast amount of knowledge in Family Law. Unlike other practices, we only practice family law. We therefore offer a niche service and provide a tailored approach to suit your personal matter. With knowledge in the field, we can explain to you the hurdles you are likely to face and from the outside assisting you in devising a strategy to obtain the result you want to achieve. As well as equipping you with legal knowledge and information we can also assist you with your documentation. This includes assisting you in preparing your application, your witness statement, position statements as well as assisting you in preparing your bundle ahead of a hearing. We can also assist you with you filing your documents with the court and simplifying complex court orders and directions in a manner which is concise and easy for you to digest.
Are McKenzie friends regulated?
McKenzie friends are not required to be regulated. They do not even have to require any qualification or experience in Law. However some fee charging McKenzie friends have enrolled themselves with a professional institutions such as the Society of Professional McKenzie Friends or the McKenzie Friend Organisation. The Society of Professional McKenzie friends do not have any code of conduct or regulate McKenzie friends but quite simply acts as an approve directory of approved McKenzie friends to ensure their members are competent, insured and comply with court rules. The McKenzie friend organisation is a similar organisation who are not a regulatory body but promote and maintain certain standards and have a complaints policy for people in their organisation.
Arrange a free consultation to find out more about acting as a litigant in person and McKenzie friends
Our team of family lawyers in Fulham, London, Manchester, Oxford, Newcastle and Northampton are always on hand to help with your enquiries. Contact us on 0208 059 6600 to discuss your matter or let us call you back. We can prepare you for what lies ahead with our expert knowledge and ensure you are ready for the challenge of family law proceedings. We can also provide you an insight into what is a McKenzie friend and discuss the range of services we offer which are tailored to your particular needs.
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