C. Hallam McKenzie Friend
Practical and emotional help and support with Family, Criminal and Employment Law, including, Child Contact, Residence, (Child Arrangements) Cafcass, Social Services, Mediation, Child Protection, Care Order, Letter Before Proceedings, Disciplinary, Grievance.
Role of a McKenzie Friend
Litigants are feeling the credit crunch, and now more than ever will be anxious to do all they can to reduce their legal fees. “Do-it-yourself divorce” for example, has become increasingly popular, as legal fees diminish the resources available to the whole family. Such litigants need not find themselves totally without legal assistance.
A “McKenzie friend” is a friend or advisor (frequently unqualified) who assists litigants acting in person.
The phrase “McKenzie friend” derives from the 1970 Court of Appeal case of McKenzie v McKenzie ([1970] in which a husband acting in person in divorce proceedings was denied the use of an assistant to take notes, and advise and prompt him in court.
When may a McKenzie Friend assist?
Helpful guidance on when a person may be allowed to act as a McKenzie friend was issued by the President of the Family Division (President’s Guidance: McKenzie Friends [2008] 2 FLR 110 issued 14 April 2008), which draws together the established principles of the earlier case law in this area. Generally, there is a strong presumption in favour of a McKenzie friend being permitted (specified in the President’s Guidance), including private hearings. The ability for a litigant to be assisted by a friend to provide moral support, note taking, helping with references and papers and quietly advising is “well established” per Lord Woolf, in Clarkson v Gilbert [2000], where a husband was permitted to assist his litigant wife and address the court on her behalf. This is scarcely surprising, as courts are generally keen to protect litigants in person from disadvantage, and, as the President’s Guidance makes clear, a person’s right to a fair trial (Schedule 1 Part 1, Article 6 of the Human Rights Act 1998) is engaged in this area. However, the opposing party must also be entitled to a fair trial and if the court takes the view that a would-be McKenzie friend will obstruct the efficient administration of justice, then the court can refuse to allow them to take on that role. Equally, an existing McKenzie friend can be removed from that role by the court.
As stated above, McKenzie friends may assist a litigant by providing quiet advice and support. However, they are not entitled as of right to address the court. Provisions exist for an unqualified person to be granted rights of audience at the court’s discretion, under s28 of the Courts & Legal Services Act 1990. The same act allows the court discretion to permit such a person to conduct litigation (s27). If a litigant wishes their McKenzie friend to be granted rights of audience under s28 of the act, the President’s Guidance makes clear that the application must be made at the start of the hearing. The President’s Guidance also indicates that the right of audience may be granted “in exceptional circumstances and after careful consideration”