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5. Legal Precedents for the Use of McKenzies

Litigants in Person are still being denied the assistance of McKenzies in certain circumstances.  The following precedents may help you; we take a historical look at the changing attitudes towards McKenzies.

In 1991 in R v Leicester City Justices, ex parte Barrow [1991] 2 QB 260 (CA) the judge said,

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.

The McKenzie (McKenzie v McKenzie [1970] 3 WLR 472 CA) and R v Leicester cases were heard in open court, most cases involving children are heard in chambers; as such this gives rise to problems, and McKenzies have sometimes been excluded from these cases following objections from the other party or on the judge’s initiative.

In Re H (Chambers Proceedings: McKenzie Friend) [1997] 2 FLR 423 the Court of Appeal held that a recorder should not have refused a father leave to have a McKenzie Friend in an application for contact to his daughter heard in chambers.  Unhappily this case was post-trial and no retrial was ordered.  The judgement held that only summaries of documents could be shown to McKenzies.

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 stated that it was ‘a matter of regret’ that the father had been denied the assistance of a McKenzie Friend and said 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.  Again the ruling was post-trial and no retrial was ordered.

In R v Bow County Court ex parte 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; this important ruling opened the way to challenge poor reasons for refusing a McKenzie and was exploited in the following case.

In Re H (McKenzie Friend: Pre-Trial Determination) [2001] EWCA Civ 1444, [2002] 1 FLR 39, the trial judge had refused the father’s application to be assisted by a McKenzie Friend on the ground that, having listened to and observed the proposed McKenzie, he felt that, with the father on his own, the hearing would be fairer, and less adversarial and legalistic.  Allowing the father’s appeal Thorpe and Keene LLJ in the Court of Appeal stated that the presumption in favour of permitting a McKenzie 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 thereby contributed to the acrimony.  The indefatigable campaigner Michael Pelling, the father’s McKenzie wrote,

This is believed to be the first case since the original McKenzie v McKenzie [1970] 3WLR 472 CA when on appeal a court has ordered a trial to take place with a McKenzie Friend.  It is the first time a specific judge has been ordered to permit a McKenzie Friend in a trial before him.  Other cases in the Court of Appeal such as Re H [1997] 2FLR 423 CA and Re M [1999] 1FLR 75 CA have been post the trial and while expressing sympathy the Court of Appeal has not ordered a retrial.  In Mr H’s case we got to the Court of Appeal before the trial and it was ruled he must be allowed the Friend of his choice.

In 2005 the Court of Appeal took the opportunity of reviewing the legal position of McKenzie friends in three conjoined appeals reported as Re O (Children) and Others [2005] EWCA Civ 759, [2005] 2 FLR 967.  In two of the appeals the issue was the refusal of a judge to allow the father’s McKenzie Friend to accompany him in chambers and in the other the issue was the question of the extent to which papers in the proceedings could be disclosed to the McKenzie Friend in the light of the restrictions on disclosure then contained in the Family Proceedings Rules 1991 (FPR), rule 4.23 (now superseded by the Family Procedure Rules 2010, Rule 12.73).

In a judgement which contained strong criticism of two of the first instance judges the Court of Appeal pointed out that the right to a fair hearing under Article 6.1 of the European Convention on Human Rights is engaged on any application by a Litigant in Person for the assistance of a McKenzie Friend.

The Court made a number of observations, some of which have been incorporated into the President’s Guidance,

1. 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.

2. 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.

3. In the same way that judicial continuity is important, the McKenzie Friend, if he is to be involved, will be most useful to the Litigant in Person and to the Court if he is in a position to advise the litigant throughout, and is present when the application for his assistance is made, so that the judge can be satisfied that the McKenzie Friend fully understands his role and, in particular, the fact that disclosure of confidential court documents is made to him for the purposes of the proceedings only.

4. 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.

5. 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 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 his appointment in the first place.

6. The following do not, of themselves, constitute ‘compelling reasons’ for refusing the assistance of a McKenzie Friend:

(i) 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;

(ii) 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;

(iii) 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;

(iv) that the proceedings are confidential and that the Court papers contain sensitive information relating to the family’s affairs.

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