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“Friendly McKenzie, writing the words of a sermon that no one will hear”

{Am hoping for no more McKenzie Friend cases for a while, as am out of puns… }

 The Court of Appeal have decided another McKenzie Friend case – judgment not up on Baiili yet, so all comments qualified by the fact that I haven’t been able to read the judgment itself.

 RE F (CHILDREN) (2013)

 

In this case, the mother had been involved in care proceedings, a finding of non accidental injury was made and Care Orders had been made. The mother applied for permission to appeal and asked for M to be her McKenzie Friend. M produced a document in support of mother’s case.

 The LA objected to this McKenzie Friend being involved, and the Court heard the request for M to be mother’s McKenzie Friend without M being able to come into Court.

 The application was refused and thereafter the mother refused to participate in the proceedings on the basis that her article 6 rights had been breached. She then appealed.

 The Court of Appeal held that the Judge had been entitled to refuse M becoming a McKenzie Friend, although there was a presumption that a litigant in person should be able to have a McKenzie Friend, and also that the Judge was entitled to determine that although M had not been allowed to come into Court.

 Frankly, this case seemed to hinge on M herself, and the document submitted. (This is the extract from Lawtel’s summary, other case law websites are available)

 

The relevant Practice Guidance also assumed that the proposed McKenzie friend would be in court on the application for permission to act. However, the judge’s decision in this case could not be faulted. He had seen the statement produced by M. It was a striking document.

It made clear that M had embarked on a campaign concerning the family justice system and the conduct of the local authority, that she did not respect the confidentiality of the family justice system in other cases and in the instant case, and that she did not understand the role of a McKenzie friend, which was to assist with presentation of the case in court in a neutral manner.

It was clear that M had a personal interest in the instant case and expected to give evidence to make good her contentions. Her ability to be a McKenzie friend had been compromised by the statement. She claimed that she had the permission of those involved to disclose details of other cases, but the confidentiality of family proceedings was a matter for the court. 

Mother was entitled to a McKenzie friend, but M was not a suitable person for that role. If M had been in court on mother’s application, the judge would not have changed his view. He acted within the ambit of his discretion on the basis that M might not respect the confidentiality of the proceedings.

 The confidentiality issue is of course a good point  [although it could, it seems to me, to have been dealt with by making a reporting restriction order, or seeking undertakings]

 but is it a valid reason to refuse someone as a McKenzie Friend because they are a campaigner opposed to the current family justice system, and perhaps have strident views about it?

 They might not be the best person to coolly advise and assist the litigant in person, they might not be the best person for the role, but if they follow the Practice Direction (and if not, the Court warns them that they may have to be excluded)  shouldn’t the parent be able to choose who they want?

 A parent who has had their child removed might very well want someone assisting them who is of the view that family proceedings often get things wrong, that children are unnecessarily removed, that social work decisions need to be questioned.

 If one, for example, were choosing between John Hemming MP and Martin Narey, to be your McKenzie Friend   (and other McKenzie Friends are of course available, this is just as an illustration)  I can see perfectly well why as a parent you might want the one who is critical of the fairness of the current system.

 It appears to be that the document was so peculiar and wide of the mark that it spoke for itself.  And that if the M had held those views, but was respectful of the rules of behaviour and confidentiality, she could have acted as McKenzie Friend for mother.  I hope, and suspect, that this will be plain in the full judgment, that it is not the beliefs that M held that made her unsuitable, but the actions she took as a result of those beliefs.

The Court of Appeal do make it plain that mother is entitled to a McKenzie Friend, just not this one.

 Provided the McKenzie Friend conducts themselves properly in Court, it seems to me that a parent is entitled to seek out help from the person they choose; just as a parent who is represented is entitled to prefer to have a ‘tenacious’ barrister rather than a ‘dispassionate, forensic’ one to represent them.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

8 responses

  1. Jerry Lonsdale

    Well if I had to choose a MKF I would go for the judge, the most bizarre situation happened after the case whereby the LJ McFarlane turned upin parliament to give a speech on the release of the Family Rights Group Reports both the Appellant and myself were also there and he spoke to us on first name terms, sadly as well I know there is going to be another MKF case hitting the courts again after another LA have applied for the removal of an MKF who had been involved in the case for over three years I have a horrible notion that in the current climate the role of MKF’s is going to be more prominent in family proceedings and so will face more situations like this, as for the above case I do understand the courts reasoning on the point of MKF’s which will be explained in more detail in the judgment

    • Hi Jerry,

      I will be interested to know the outcome of that case with the removal of the McKenzie Friend, as it is hard to conceive of the grounds for that, or indeed the provisions for making such an application – unless the McKenzie Friend has breached the rules of engagement, which I’m sure (knowing who it is) is not the case, and even then, it seems that it would be for the Court not the other parties, to flag this up, and that losing three years of continuity even then would not be something done lightly.

      I can’t, for example, concieve of a situation where I, representing a Local Authority, could ever ask the Court to discharge a parents solicitor or counsel (tempting though it might be when they have me pinned up in the robing room chewing my ear off).

  2. stella aka toni

    i can personally guarantee the said MKF will be appealing this one and is in the process of drafting the documents and listing it shortly i think the lower court judge summed up the ‘said’ MKF’s appeal grounds in his one significant comment ‘Mrs M is detrimental to the local authorities case against parents” yes i am !! 😉 so expect an update shortly !! xx

    • Hi Toni – as you will see from my piece, I am of the view that a parent ought to be able to go to a McKenzie Friend who has strong opinions about the flaws in the family justice system if that is what they want. I didn’t realise it was you, of course. I hope, that as long as you’re not breaching confidentiality, the fact that you have strong views and personal experience, isn’t counting against you when Courts are considering the case that parents assisted by you are putting. It really shouldn’t be.

  3. Yet AGAIN the family law system laughs in the face of equality & diversity behind it’s veil of secrecy, yet AGAIN, appellants are denied the most basic of human rights, the right to a fair trial in this case and yet AGAIN, we see this so called ‘justice’ system using their ‘crystal ball’ technique of what a person ‘might’ say or do.
    Yet AGAIN, the defendants do not produce the evidence required of them, in this case the previous judgement, yet are not held in contempt of court.
    As already discussed above, if the concerns were based on what I have written, an order to avoid any discussions taking place outside of the court room could easily have been put into place, this option apparently seemed too sensible and easy.
    As a witness on the day, to the obvious bias attitude delivered by the court in question, I expect/hope to find a very different attitude on the return to the court to re-address the situation, I am also respectively expecting this case not to set a precedence

  4. forcedadoption

    Judges in family courts view the function of solicitors and barristers representing parents against a local authority very simply.They believe their function to be twofold 1:- to put a gag in the parents’ mouths to stop them sayng anthing that might help their case,and 2:- To persuade parents to go along with the social workers and to agree not to oppose interim care orders or to appeal against any orders that their children should be placed for adoption!
    No judge will tolerate for long McKenzie friends who actually fight for their clients !
    That would never do……….

    • I think you’ll find that’s exactly what happened here … and no, it didn’t go down well at all

  5. I agree with the CA that the MKF cannot also be a witness, any more than solicitor and counsel can. That’s a game-stopper.

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