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McKenzie Friends
and Litigation Assistants
Associated page: Representing Yourself
What is a McKenzie friend?
Who are they? Professional or volunteer?
How can a McKenzie friend help me at the hearing?
Your right to a McKenzie friend – the legal position
If you are refused McKenzie friend assistance
McKenzie friend – preparatory documents
Who can you / can’t you have as a McKenzie friend
Confidential documents & McKenzie friends
Expenses & Fees
Availability
Can FNF provide me with a McKenzie friend?
Some further considerations
……………. for more detailed explanations and downloadable documents see the Members’ Page
What is a McKenzie friend?
A "Litigant in Person" (LIP), that is, a person who represents himself in court without the help of a qualified lawyer, is generally entitled to have another layperson sit alongside him in the courtroom to provide secretarial help and quietly offer advice. This person cannot address the court and cannot take part in the proceedings in any way. The term derives from the 1971 Court of Appeal case of McKenzie v McKenzie in which this form of help was addressed.
Increasingly the term ‘McKenzie friend’ is used more widely to describe someone who, besides actually going to court with the LIP, also helps him prepare his case for court. Those who provide this more extensive support are more accurately described as ‘litigation assistants’ but the term ‘McKenzie friend’ is routinely used to cover them too.
The term McKenzie friend, once a colloquial term, has now been formally adopted into legal terminology through usage in Family Division guidance and Regulations.
Who are they? Professional or volunteer?
Originally, McKenzie friends tended to be actual friends of the LIP they were helping. Within FNF this may still be the case since members may befriend one another at branch meetings and subsequently, out of generosity of spirit, accompany each other to court as a McKenzie friend. In such instances they are prepared to give up a half or a whole day of their time, perhaps not being able to contribute a great deal because of their limited knowledge and experience of the family courts – though, of course, some will be more than competent.
For a range of reasons, more and more parents are acting as LIPs in family proceedings and there has been a growing demand for McKenzie friend assistance. There aren’t enough ‘friends’ who can, and who are willing, to take a day off from work to help. This gap between the supply and demand for McKenzie friends has led to a situation in which LIPs are now often prepared to pay McKenzie friends for their help. Some individuals are full-time McKenzie friends who will charge for their services. So, if someone offers to ‘McKenzie’ for you, you will need to establish whether they intend to charge you a fee or not. Generally, but not always, those who charge will have the time and will be prepared to contribute to case preparation too – since they will be earning additional fees from this. There are also a few firms actually offering McKenzie friend services. A list is available on this website though this does not imply a recommendation.
How can a McKenzie friend help me at the hearing?
You may hear that McKenzie friends are sometimes allowed to address the court. Judges rarely allow it so do not depend on it. This may be something for the future as more and more parents begin to act in person. In the summer of 2008 Mr Justice Munby reviewed the issue of McKenzie friends’ right of audience in his judgment. He concluded: (a) There was no right of audience for McKenzie friends (b) A judge had a wide discretion to allow a McKenzie friend a right of audience (c) The circumstances in allowing rights of audience to McKenzie friends do not have to be exceptional This was not a Court of Appeal decision, but Mr Justice Munby’s declaration that the circumstances do not have to be “exceptional" will carry a lot of weight with other judges. Your should anticipate that you will still be required to regard your McKenzie friend as a silent assistant in the court room.. It is more common for an LIP to deny himself help by ignoring his McKenzie friend, than it is for a judge to prevent an LIP from turning to his McKenzie friend for advice. Don’t pretend your McKenzie friend isn’t present; don’t be embarrassed to consult with him. Your McKenzie friend should always attempt to write down any judgment or reasons for the order that follows.
As in many situations, simply having someone with you will give you confidence. Your McKenzie friend may be able to assist you in any negotiations at ‘the door of the court’. During the hearing your McKenzie friend will be able to ‘feed’ you the next point you need to make. You can ‘use’ your McKenzie friend, taking a breather (with the judge’s permission) whilst you consult with him. If your McKenzie friend is familiar with the paper-work he can quickly find documents which you wish to refer to. Your McKenzie friend can nudge you and remind you to slow down or to calm down.
Your right to a McKenzie friend – the legal position
There is no absolute right for an LIP to have the assistance of a McKenzie friend, but there must be ‘compelling reasons’ for a refusal, and a requirement that a judge who refuses an LIP this assistance must give a full explanation to both the LIP and the proposed McKenzie friend as to why the assistance has been refused. A judge’s assessment that the LIP is capable of managing the hearing without assistance is not a sufficient reason to deny him assistance. This was the opinion of the Court of Appeal in the 2005 case, Re O, W-R, W . In April 2008, following lobbying from FNF and information that some judges were continuing to ignore the Court of Appeal’s advice, the President of the Family Division issued 'guidance'. In response to a High Court judgment in relation to a McKenzie friend's right to address the court, the President's guidance was subsequently updated with President's Guidance: McKenzie Friends in October 2008.
If you are refused McKenzie friend assistance
If you haven’t already, you should direct the judge to the leading authority [case law] above. That authority rules that your proposed McKenzie friend should be able to assist you whilst you argue the case as to why he should be allowed to assist you in the hearing.
If the judge refuses to listen to your arguments or is not persuaded by them, you have two options:
(a) To withdraw from the hearing on the grounds that the refusal has denied you the chance of a fair hearing. A judge is entitled to make any order in your absence, but you would have good grounds for appealing that order. A judge faced with your threat to walk out may capitulate and allow your McKenzie friend to help you, but your stance won’t have endeared you to the judge.
(b) To continue with the hearing, taking an opportunity to explain that you are doing so under duress and that you consider you may be disadvantaged by the refusal. If you were considering appealing the resultant order the fact that you had been refused a McKenzie friend's assistance would be an additional ground for any appeal.
Finally, contact FNF and provide us with details by completing the McKenzie Friend Refusal Report form in order that we may use your negative experience as evidence so that further training and guidance is issued to judges and magistrates about this issue.
The lower the court, the more likely you are to be refused a McKenzie friend.
McKenzie friend – preparatory documents
The Court of Appeal guidance recommends that the court should be notified of an LIP's intention and the identity of the proposed McKenzie friend as soon as possible. Therefore, if you are able to, write to the court with this information prior to the hearing. In many instances this won’t be possible.
The guidance also recommends that the McKenzie friend provide the court with a short CV encompassing:
· That the McKenzie friend has no personal interest in the case
· That the McKenzie friend understands / is familiar with his role in the proceedings
· That the McKenzie friend understands the confidentiality requirements in family proceedings
It would be helpful for your McKenzie friend to have a copy of the relevant case law (Re O,W-R,W) to hand and an up-to-date copy of the relevant section of the FPR1991 (10.20A).
Who can you / can’t you have as a McKenzie friend
Your McKenzie friend does not have to be an actual friend. Commercial / fee-charging McKenzie friends are allowed – though some judges may not recognise this. Your McKenzie friend could be legally trained, perhaps a solicitor or barrister experienced in some other area of law; he’d simply act as a normal McKenzie, taking notes and inconspicuously guiding you with advice, just like any other McKenzie friend.
It is not advisable to present immediate members of your family (or your new partner) whose presence might upset or antagonise the other party as your McKenzie friend, particularly if sensitive personal details might be discussed. A judge might rule that his/her presence might disrupt or make a negative contribution to the hearing.
Confidential documents & McKenzie friends
The Family Proceedings Rules (1991) have been amended following the recognition and acceptance of McKenzie friends in family proceedings to allow them to have sight of what were previously confidential documents. Section 10.20A to the FPR1991 states: “a party to proceedings (e.g. an LIP) can disclose any information relating to the proceedings to a lay adviser or McKenzie friend to enable the party to obtain advice or assistance in relation to the proceedings.”
Expenses & Fees
An LIP must obviously cover any expenses incurred by his McKenzie friend. For the volunteer McKenzie friend this will be for travelling, possibly for stationery, printing, photocopying and phone calls and, if your case goes past midday, lunch. It is easy to forget about his expenses, especially following the stress of a hearing – Don’t. You could also consider a small gratuity, perhaps a token amount to show you have appreciated his contribution. Some McKenzie friends may be embarrassed to accept money so consider sending them a cheque, perhaps replenishing their paper or printer cartridge or making a donation to a charity such as FNF.
Solicitors are required to provide clients with a document setting out their charges. Fee-charging McKenzie friends have no governing body and no rules or protocols to follow. You must try to ensure that both you and your fee-charging McKenzie friend have the same understanding about fees and the work to be covered. If possible, get something in writing.
FNF has produced a suggested schedule of volunteer McKenzie fees available here.
Availability
There are many reasons why ‘your’ solicitor might not be available, even on the day of a hearing: competing court appearance listed for the same day, illness, holiday etc. However, unlike McKenzie friends, most solicitors work in firms employing several, if not many, solicitors. If your assigned solicitor is not available on the day another can step into the breach. It is not uncommon for a McKenzie friend you have relied upon, one who has contributed a lot to your case preparation, to be unavailable on the day of a hearing and also be unable to provide you with a replacement McKenzie friend.
Can FNF provide me with a McKenzie friend?
Some further considerations
- Decisions must always remain your responsibility – your McKenzie friend should at the most advise you, not tell you what to do.
- Your relationship with any McKenzie friend you encounter through your involvement with FNF is a matter for you and him. FNF can accept no responsibility for anything the McKenzie friend does or fails to do.
- However, should you have a serious complaint about any McKenzie friend associated with the Charity we would want you to let us know so that we can take whatever steps we can to protect other members from a similar experience.
- Judges vary in their attitudes towards McKenzie friends. Some regard them as a nuisance to be tolerated at best and others see them as being very helpful.
- Even if you have the best McKenzie friend possible it may be, perhaps because of the judge’s attitude or your own inability to fully use the assistance available, that you receive little actual help.
- Most judges will be extremely patient and allow you ‘time out’, a few minutes to quietly consult with your McKenzie friend. Don’t be embarrassed to ask for this.
- Whatever contribution the McKenzie friend has made during the hearing, at least have him write the court order down as the judge recites it whilst you listen. Some orders affect matters immediately or within days and you may not receive a formal copy of the transcribed order for weeks. You’ll need to know exactly what was ordered.
- Some fledgling LIPs choose to act as McKenzie friends for others who are happy to have relatively inexperienced support, in order to familiarise themselves with the court and its procedures.
- If the court has refused you the assistance of a McKenzie friend please let us know by completing a ‘McKenzie Friend Refusal Report form.
- And if you would like to become a volunteer Mckenzie contact FNF - we run training courses as we always need more!
Updated 12 December 2008
