The Court of Appeal considered the role of McKenzie Friends, post the Practice Note guidance, in the case of Re H (Children) 2012 Neutral Citation Number: [2012] EWCA Civ 1797 [and I know, my title is awful, but it does scan, if you sing it to yourself]
Although the judgment was ostensibly given in June 2012, it fluttered across my computer screen today. Not quite sure why there was such a delay.
Also, sadly, I haven’t yet been able to track it down on Bailii, so can’t give you the full transcript (I have it, but it is behind a paywall, so can’t link it)
It raises some interesting points, not least being that almost inevitably, for private law proceedings, once we get to April and the State takes away free legal advice for almost all cases, we are going to see more cases conducted by parents in person, and thus more McKenzie Friends.
I can at least link you to the guidance
For those of you who may not know, a McKenzie Friend is someone who assists a litigant in person with their case. It happens generally when that person does not have a lawyer. The McKenzie Friend does not have to be a lawyer, or have any legal background (though some do) and there are some rules about what they can do. They don’t get to speak in Court * or ask questions, but they can help the person understand what is going on.
{*unless they ask for rights of audience in a particular case and are granted them, which will be decided on the facts of the case. Rights of audience is our special medieval lawyer language way of saying “Is allowed to speak to the Judge without being in the witness box”}
From the guidance
What McKenzie Friends may do
3) MFs may: i) provide moral support for litigants; ii) take notes; iii) help with case
papers; iv) quietly give advice on any aspect of the conduct of the case.
What McKenzie Friends may not do
4) MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii)
manage litigants’ cases outside court, for example by signing court documents; or
iii) address the court, make oral submissions or examine witnesses.
Now, as in any walk of life, there are bad McKenzie Friends, and good ones, just as there are good and bad Judges, lawyers, social workers, dentists, South African athletes and so forth. I happen to have met with one through the writing of this blog who I think is an excellent one, balanced though passionate, and smart as a carrot*. {*which is Northern for smart}
The guidance really came about to try to get some clarity about the role and minimise the harm that a bad one can do in a case. If you ever wonder about the reason for rules being introduced, I suggest you look on a Court report website and type the name “Pelling” into the search box.
Now, as Justice Wall observes in this case, cases involving McKenzie Friends don’t often come before the Court of Appeal (I think what he means is where the involvement of the McKenzie Friend was an active issue, as I know of a few successful appeals where a McKenzie Friend was involved and very helpful), and he believed this to be the first case since the Guidance where it was an issue for the Court of Appeal.
In this one, the Judge at first instance had refused the particular McKenzie Friend who was assisting the father. The Judge had felt that the particular McKenzie Friend had gone further than the guidance and had caused the mother to feel intimidated. She was at pains to make clear that father could obtain another McKenzie Friend for the hearing.
The appeal also revolved around the father’s desire to file statements from ,and call, a number of character witnesses. The Court of Appeal politely explain why character witnesses (which seem to be important evidence so far as a parent is concerned) aren’t helpful to the Court.
People in the appellant father’s position frequently take the view that “character”witnesses are of particular importance in Children Act cases. In fact, often the reverse is the case. A witness who knows one of the parties, even if he or she has seen the party in question with the children, is rarely any help to a judge deciding what is in the best interests of the child or children concerned in the particular facts of the case.
The reasons for this are threefold. Irrespective of the quality of the witness, often the witness is partisan in favour of one party rather than the other. Secondly, what matters of course is the judge’s assessment. And thirdly, what also matters is that the witness can rarely give direct evidence about the issues which the judge has to decide.
Now, we turn to the reasons for refusing the McKenzie Friend
She had adjourned the case on a previous occasion in order, as I said, to ensure that she could familiarise herself with the papers and she heard a number of submissions from the solicitor acting for the children, including evidence that the father’s McKenzie friend had overstepped the mark and prepared a document in the case template which referred to the name of a child who was nothing to do with the proceedings, even though the father asserted that 80 percent of the work had been done by him.
15. The judge concluded her short judgment with these words:
“5. I am concerned about the fact that there is a crossing over it seems to me here of a McKenzie Friend into the realms of conducting litigation. So far as I am concerned, the documentation does cross the line, and even if it is only twenty per cent it is twenty per cent too much. I do not accept the explanation for Joshua [that is the name that was included in the father’s application]. I am not going to permit [the McKenzie friend] to be a McKenzie friend, as I am invited to do so, not only by the mother but also by Mr Philips on behalf of the children. I also think it is highly likely that she was intimidated in the manner she has described and of course given that the hearing is in January 2012, Mr [H] has plenty of time to appoint another McKenzie friend. If required to do so, I am happy to give further reasons, but this case is only allocated 30 minutes in what is a very busy list.”
The intimidation thing is quite case specific, but I was interested in the suggestion that a McKenzie Friend contributing 20% to a document is 20% too much.
Would the Court of Appeal accept this or reject it?
Even if one takes away the finding of fact that the mother was intimidated from that hearing, there seems to me to be adequate reasons for the judge to have acted as she did. She also read the curriculum vitae of the father’s McKenzie friend and referred to the guidance.
16. For myself, I have come to the clear view that this was a case management decision by the judge exercising her judicial discretion, albeit in a swift and it must be said somewhat rough and ready way; nonetheless it is in a way with which this court should not interfere. It needs to be said that the reasons that she gave are perfunctory but, in my judgment, reasons do not have to be elaborate if they are stated briefly and shortly and the fact that the judge was sufficiently straightforward to say that she could give fuller reasons if she wanted to, given a longer period of time, does not mean that the reasons she did give were in any way inadequate. If they had been inadequate, it may be that I would have expected certainly that she would have been asked to elaborate upon them, but she was not. This is a case management decision which in my view the judge was entitled to make and I would therefore dismiss the appeal.
17. It is worthwhile pointing out, however, in view of the submissions made to us this afternoon by the appellant father that the judge did refer to the guidance, reported at [2010] 2 FLR 962, which makes it very clear what McKenzie friends may not do:
“4) MFs may not i) act as the litigants’ agent in relation to the proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses.”
The following paragraphs of the guidance also set out the duties of a McKenzie friend and what a McKenzie friend cannot do:
(18) “Rights of audience and rights to conduct litigation
MFs do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a MF), the court grants such rights on a case-by-case basis.
(19) Courts should be slow to grant any application from a litigant for a right of audience or a right to conduct litigation to any lay person, including a MF.
This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.
(20 )Any application for a right of audience or a right to conduct litigation to be granted to any lay person should therefore be considered very carefully. Thecourt should only be prepared to grant such rights where there is good reason to do so taking into account all the circumstances of the case, which are likely to vary greatly. Such grants should not be extended to lay persons automatically or without due consideration. They should not be granted for mere convenience.”
18. In those circumstances, on the findings which the judge made, my clear view is that she was entitled to do what she did. I would therefore refuse permission to appeal paragraphs 4 and 6 and I would dismiss the appeal in relation to paragraph 1.
It seems to me, therefore, that the Court of Appeal have given a degree of backing to a very broad construction of the prohibition on the guidance that they must not “manage litigants’ cases outside court, for example by signing court Documents” as including also having a hand in the construction of such documents (if even a 20% contribution is 20% too much, then that suggests no input at all)
That seems to me to be quite a significant matter – there’s obviously a large space between the McKenzie Friend “conducting the ligitation” which is prohibited, and having no input into the construction of documents prepared for Court at all.
Does that mean that a McKenzie Friend is prohibited from looking over a document prepared by the litigant in person before it is filed and suggesting that a point could be made better, or that a passage be toned down, or correcting a factual inaccuracy? What about typos? What about where the litigant in person is asserting something that the McKenzie Friend, from experience and knowledge knows is wrong in law (like “I am entitled to an equal share of time with my children” or “The father has to prove his allegations against me beyond all reasonable doubt” ?) – what about where there’s a basic mistake in style (addressing the Judge as “Your worship”) ?
Common sense says to me that of course the McKenzie Friend should be able to have that sort of input, where the Court has agreed to a request that a McKenzie Friend be involved. But the wording “So far as I am concerned, the documentation does cross the line, and even if it is only twenty per cent it is twenty per cent too much.” which was not held by the Court of Appeal to be wrong, still less plainly wrong, leaves the door open to that sort of ambiguity.
It would seem that for safety’s sake, an application ought to be made for the McKenzie Friend to conduct litigation – this being something traditionally done where the McKenzie Friend intends to seek rights of audience in the case, and if that is granted, then the McKenzie Friend would be allowed to assist in the shaping, crafting, finessing and polishing of court documents. That would be using the provisions in paragraphs 18-20 of the Practice Note, and is probably something that most careful McKenzie Friends already do.
[As one of my traditional digressive footnotes, I became sidetracked into wondering whether McKenzie was the name of the Friend, who first did this, or whether there was a McKenzie, who HAD a Friend…
And find that it was a divorce case in 1970 between Mr McKenzie and Mrs McKenzie , where Mr McKenzie’s former solicitors had kindly sent a young Australian barrister along to assist Mr McKenzie by taking a note and explaining things as they went along, little knowing what a chain of events would be set in motion by this
http://z2k.org/wp-content/uploads/2011/09/MCKENZIE-v-MCKENZIE-1970-3-W-L-R-4721.pdf
“Every litigant is entitled to have the assistance of a friend nearby and that friend is entitled to assist the litigant by prompting him, making notes or suggestions, giving advice, and suggesting ways in which the litigant can cross-examine the witnesses: per Lord Tenterden C.J. in Collier v. Hicks (1831) 2 B. & Ad. 663, 669. While it is true that nobody can take part in the proceedings as an advocate unless he is qualified so to do by being a member of the Bar or in the lower courts a solicitor, there is no prohibition on any person assisting a party to the proceedings in other ways, e.g., by passing notes, giving advice, or prompting.
The judge said that Mr. Hanger could not take part in the proceedings. He was merely sitting next to the husband and making suggestions to him”
That also took me to the charming reference within McKenzie v McKenzie to this passage :-
“In saying that I have in mind Tucker v. Collinson as reported in The Times, February 11, 1886 (reported on another point in 34 W.R. 354). In that case a lady, stricken with court dumbness when her appeal was called on, was not allowed to have the assistance of somebody who wished to help her. But that ruling turned on some very special provisions of the in forma pauperis procedure then”
Which raises two issues – one, why on earth would anyone think that an ordinary person would need assistance to understand commonsense everyday language like in forma pauperis, and two – I love the idea of an age where one could be stricken by Court dumbness. It has certainly happened to me from time to time, and I had no idea it was a known condition. In future, I will simply say that “For the moment, I am inhibited by the affliction referred to in Tucker v Collinson” and hope to get away with it
But back to my original digression
If the Court had taken the alternative approach of naming the assistant after the person who was helping, rather than the name of the client being helped, they’d have been Hangers-On, rather than McKenzie Friends.
suesspiciousminds 
Yes, the title IS awful! 🙂
time to set another precedent then makes a mockery of FPR 12.75 rules….http://www.legislation.gov.uk/uksi/2010/2955/article/12.75/made guess that wasnt argued then
Yes, I had, I have to say, always taken the view that a McKenzie Friend could assist in the construction of such documents, as long as they weren’t DRIVING the litigation. You are quite right that these provisions seem to suggest that a party can ask anyone to ASSIST with the case.
It seems that the trial Judge took a broad view that ‘conducting’ the litigation (which is prohibited without leave) meant doing anything at all other than advising, and the Court of Appeal here don’t reject that broad view; I think wrongly.
Having been an MKF for nearly 8 years, I found the principles in the Practice Directions do not really say in great detail, as you know, I have and still do prepare many documents for Parents cases for courts including the COA and right up to the ECHR,
particular point here in the guidance of 2010 :-Remuneration
27) Litigants can enter into lawful agreements to pay fees to MFs for the provision of
reasonable assistance in court or out of court by, for instance, carrying out clerical
or mechanical activities, such as photocopying documents, preparing bundles,
delivering documents to opposing parties or the court, or the provision of legal
advice in connection with court proceedings. Such fees cannot be lawfully
recovered from the opposing party.
“Clerical or Mechanical”
That has obviously a wide scope, when the words “Such As” are used in Guidance what does it really mean?
In my view, the preparation of bundles, that obviously would be something an experienced MKF could do in their sleep, where as a parent may struggle with that task, indexed and pagination, not easy for those who do not understand
When Solicitors prepare their clients statements they take verbatim what the client wishes to say, then the Solicitor would write up the statement, then ask the client to read, if happy with the context the client is asked to sign it, obviously the solicitor puts the statement into a context and format which all parties would understand, it may mean using different words which reach the same point,
That is what I also do, over the years the judges I have faced were well aware that this is what had happened, no problems or questions were raised regarding this, it makes the cases and courts run more smoothly.
I was in front of LJ Wall as he was then back in 2007, the parent had prepared her own court applications and SKA’s plus various other documents, LJ Wall could not fathom out just what the approach the parent wanted to make,the SKA was all over the place, LJ Wall gave me permission to reproduce the mothers SKA into an easier format for the courts to read, including the parent, this I feel is part of my role in being an MKF, there is no point in me attempting to assist the courts or parents if I cannot understand the statements or papers the parents have produced which fall short of what points or issues the parent/s wish to raise,
The previous guidance from Sir Mark Potter from April 2008 I think were better than the 2010,
April this year will be an interesting month to monitor, Solicitors may end up on the Antiques Roadshow in the next couple of years
I agree, Jerry. And of course it was you I was referring to.
It worries me that the shredding of public funding without the safeguard that there are sensible, careful and reasonable McKenzie Friends out there to advise and guide lay parties, is going to lead to both injustice, and invariably cases being presented to Courts in a way that just doesn’t accord with the time-pressures on the Court that need issues identified with precision and brevity. It seems to be that a McK Friend who has been approved by the Court and knows the role can be an enormous help to all concerned and that helping to make sure that documents have precision and clarity rather than being sprawling, stream of consciousness or vitriol dipped, is something they should be able to just get on and do.
There may yet be hope with LJ Munby in charge who appears to have a liking of Mckenzie friends speaking or both McKenzie and litigant speaking, for open Courts and when both FPR widens the scope for outside assistance as well as the fact that the guidance on McKenzie friends by Wall is open to challenge on many points and it is after all only guidance and not a practice direction…….and the system seems to have forgotten the dicta in http://www.bailii.org/ew/cases/EWCA/Civ/2005/759.html for LIPs and augmented by FPR 2010 rules….
I agree with Shaun that the 2010 guidance represents a step backwards from the 2008 guidance. Munby said in a submission to the Commons Constitutional Affairs Committee that he found it easier to settle cases when solicitors were not involved and the litigants appeared in person, ‘What you are getting is the facts as they see it without the assistance – and some people might put the word in inverted commas – of lawyers.’
It should be noted that the McKenzie in Re H is well-known and well-respected; he is the last person to be guilty of intimidation. He gives an account of the case very different from that of the judge.
Re H seems likely to set back the status of McKenzies even further unless Munby intervenes with new guidance, and all based on the actions of an individual judge who seems to hold up the likes of Milligan as a role model.
Hello Nick – I like that quotation from our new President, and perhaps some new Practice Direction would be the best way forward. I don’t see particularly the harm in a McKenzie Friend who has no personal relationship in the case (i.e no prospect of them being a witness) playing a very live role in putting together documents (on instructions from the lay party) and addressing the Court and asking questions, providing they do so in a responsible way. Just as there are barristers and solicitors who can be combative in Court, there might be some McKenzie Friends who take a more combative approach, but within the boundaries of being appropriate. IF they overstep the mark, the Judge can tell them so, just as they would tell counsel.
It seems to me that without legal advice, McKenzie Friends or a construction from the ground up of a user-friendly system, what we are doing is asking parents who represent themselves to turn up and play chess for the highest stakes imaginable, and all they are allowed to know about chess is that there are pieces, and a thousand rules for moving the pieces, but you would have to go away and find out all of the rules yourselves (which are all written in Czech and not all set out in one place, but fifty different places) – and you can play blindfolded and against the clock.
If we make the rules much simpler to follow, I would agree with the President that a parent can often set out their case without gloss, varnish, or layers of obfuscation, and make the issues and case very plain.
I am not sure what really changed in practical terms between the 2008 and 2010 guidance that has any real effect on being a McKenzie Friend, but it has to be said that whilst a good McKenzie will bring benefit to the litigant, a bad McKenzie will often make their situation worse.
Its a shame the 20% comment was not challenged, because surely the McKenzie that has more to offer then the average ‘friend’ assists with not only the documentation but also what to say and more importantly what not to say in the hearing.
I am not sure that I can agree that parents are often able to set out their case. Sitting in a hearing with two LIP’s is a grueling exercise in spite, petty squabbles and irrelevant nonsense. Perhaps with a decent Judge managing the hearing it can work, but more often than not it spirals down into accusations and counter accusations which really do not help anyone.
Negotiation outside court with 2 LIP’s is usually pointless, as is being sent outside to try to reach an agreement. Many LIP’s need a reality check and someone to hold their hand in what is one of the most traumatic times in their lives.
Hello Simon, thank you for the comment. I have had similar experiences to that with litigants in person, but have also met some good ones. I suppose it is about people making the distinction (and not all lawyers get this, so am not just having a go at ‘real people’) between advocacy and arguing.
It is really easy to get drawn into going into court and arguing about the case, and just like a parent does when two siblings are arguing, the Judge invariably gets exasperated and wants to threaten to bang their heads together. If instead, you can go in and carefully, fairly and succinctly, advocate for what you want and why that is an appropriate course of action for the Court to take, the prospects of the hearing running more smoothly increase.
You only have to listen to a debate on a radio or tv show to realise that ‘argument’ in this country at present mostly consists of shouting louder than the person you disagree with and interrupting them at every opportunity. And if people get that out of control when discussing whether the horse-meat scandal is the fault of the Tories or Gordon Brown, imagine how hard it is to keep your cool when trying to persuade a Court to make the right decision about your child.
I suspect that it would be very hard to get research evidence on this, but was there some small part of the suspected inherent sexism in the family courts that is due to the inherent sexism (with a funding system which is means-tested and lack of information about MacKenzie friends) on a greater proportion of mothers having an advocate to speak for them than fathers having that opportunity? And did that small effect snowball, with more and more fathers feeling disenfranchised from the family justice system as they heard of more and more fathers getting poor outcomes?
It is a shame, I think, that more people in the family justice system aren’t given a steer towards MacKenzie Friends, what they are and how to access the good ones. I don’t think you necessarily for a lot of cases need to be a lawyer to ‘advocate’ rather than ‘argue’ but not having a personal stake in the case makes a huge difference.
Reblogged this on Bringing Home Baby… and commented:
Brilliant article; informative as possible with the author’s quick-witted spin (two thumbs up)
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