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mckenzie-friend-case-law
 
General Disclaimer: Nothing presented constitutes legal advice and the McKenzie Friend UK Network is not a legal entity or in anyway claims to be a 'legal resource'. The resource guide is supported by McKenzie Friends and Litigants in person for Litigants in Person in Family Court. McKenzie Friends provide layperson support as an informed friend under the Family Court Practice Guidance of 2010. All information is published under the spirit of that guidance. For any corrections of the information, please contact the McKenzie Friend UK Network
 
McKenzie Friend Case Law
 
 
Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad 663 that: 'Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice … '.
 
R v Leicester City Justices, ex p. Barrow [1991] 2 QB 260 (CA) where it was said that –
'if a party arms himself with assistance in order the better himself to present his case, it is not a question of seeking the leave of the court. It is a question of the court objecting and restricting him in the use of this assistance, if it is clearly unreasonable in nature or degree or if it becomes apparent that the 'assistance' is not being provided bona fide, but for an improper purpose or is being provided in a way which is inimical to the proper and efficient administration of justice by, for example, causing the party to waste time, advising the introduction of irrelevant issues or the asking of irrelevant or repetitious questions.'
 
In Re H (Chambers Proceedings: McKenzie Friend) [1997] 2 FLR 423 the Court of Appeal held that a Recorder should not have refused to allow a father to have a McKenzie friend in an application for contact to his daughter heard in chambers.
 
 
In Re G (Chambers Proceedings: McKenzie Friend) [1999] 2 FLR 59 the Court of Appeal upheld the decision of Waite J to refuse to allow a party to wardship proceedings to have a McKenzie friend on the basis that the decision as to who was permitted to be present in a chambers matter was one for the judge alone. The case was an unusual one in that the proposed McKenzie friend was a solicitor who was to be paid for his services but did not wish to put himself on the record. Although not reported until 1999 the appeal was actually heard in July 1991 and therefore preceded Re H (Chambers Proceedings: McKenzie Friend).
 
In Re M (Contact: Family Assistance: McKenzie Friend) [1999] 1 FLR 75 the Court of Appeal held that a father should have been allowed a McKenzie friend on an application for contact and other orders. Ward LJ (with whom Roch LJ agreed) stated that it was 'a matter of regret' that the father had been denied the assistance of a McKenzie friend and said (p.77) that: 'Provided the McKenzie friend acts with restraint he is often a useful assistant to the conduct of litigation'. Re H was cited, but not Re G.
 
In R v Bow County Court ex p. Pelling [1999] 2 FLR 1126(in which both Re H and Re G were cited) the Court of Appeal stated that a litigant in person should be allowed to have the assistance of a McKenzie friend in proceedings heard in public unless the judge was satisfied that fairness and the interests of justice did not require it; the position was the same in relation to proceedings in chambers unless the proceedings were in private, in which case the nature of the proceedings might make it undesirable in the interests of justice for a McKenzie friend to assist. The court said that a judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie friend.
 
In Re H (McKenzie Friend: Pre-Trial Determination) [2001] EWCA Civ 1444, [2002] 1 FLR 39, the judge refused the father's application to be assisted by a McKenzie friend on the ground that, having listened to and observed the proposed McKenzie friend, he felt that, with the father on his own, the hearing would be fairer, and less adversarial and legalistic. Allowing the father's appeal the Court of Appeal stated that the presumption in favour of permitting a McKenzie friend was a strong one. The argument in the court below had necessarily been an adversarial and legalistic one and, since it was unusual for a respondent to oppose an application for McKenzie assistance, as the mother had done vehemently, it was possible that she had contributed to the adversariality.
 
Mr O'Connell, Mr Whelan and Mr Watson[2005] EWCA Civ 759, [2005] 2 FLR 967
 
 
 
A number of principles were established:
 
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.

 
FPR, r.10.20A. The 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'.

 

 

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