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6. Right of Audience

The question often arises in family cases as to whether the McKenzie Friend can address the Court; this is called ‘Right of Audience’ - the right to be heard. There are times when it may be desirable for your McKenzie to address the Court, rather than do it yourself. Examples would be when there is a complex point of law to argue, or when cross-examining your ex.

A McKenzie Friend has no automatic right of audience but under Schedule 3, 1(2)(b) of the Legal Services Act 2007 may be granted the right of audience by the Court in relation to the proceedings. This right is not transferable to other proceedings.

It remains up to the judge of the day to exercise his discretion. The judge will be bound by the principle that his discretion is ‘to be exercised only in exceptional circumstances’. This was the ruling of Lord Woolf MR in D v S (Rights of Audience) [1997] 1 FLR 724 when he denied a McKenzie right of audience; he added that the right was not to be a matter of consent for the parties but was to be granted only by the judge.

In Clarkson v Gilbert [2000] 2 FLR 839 Lord Woolf allowed a husband to represent his wife; he said,

The overriding objective is that the courts should do justice. Now that legal aid is not available as readily as it was in the past means that there are going to be situations where litigants are forced to bring proceedings in person when they will need assistance.

However, if they are litigants in person they must, in my judgment, establish why they need some other person who is not qualified to appear as an advocate on their behalf. In the ordinary way it will be for them to satisfy the Court that that is appropriate. If somebody’s health does not, or may not, enable them to conduct proceedings themselves, and if they lack means, those are the sort of circumstances that can justify a court saying that they should have somebody who can act as an advocate on their behalf.

In May 2005 the then President of the Family Division, Sir Mark Potter, gave the following guidance,

A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] 1 FLR 724, Milne v Kennedy and Others [1999] TLR 106, Paragon Finance PLC v Noueiri (Practice Note) [2001] 1 WLR 2357). The litigant must apply at the outset of a hearing if he wishes the MF to be granted a right of audience or the right to conduct the litigation (Clarkson v Gilbert [2000] 2 FLR 839).

He repeated this guidance without the case citations in April 2008 in President’s Guidance: McKenzie Friends,

In Re N (A Child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam) Munby J allowed a mother’s McKenzie right of audience in a case in which the father’s McKenzie, Michael Pelling, had already been granted it, though in the final hearing the father was represented. Munby reviewed the authorities and current court practice, and repeated the points established in Clarkson v Gilbert that there is no automatic right of audience for McKenzie Friends: the law allows the judge unfettered discretion, and thus such an order need not only be made in ‘exceptional circumstances’. In each case the judge must decide whether its circumstances are ‘exceptional’. He repeated Woolf’s rule, ‘the overriding objective is that the courts should do justice’.

41. But this is not to say that, as a general principle, such an order can be made only in ‘exceptional’ circumstances. As Clarke LJ pointed out in Clarkson v Gilbert [2000] 2 FLR 839 at para [28], that would be, in effect, to read restrictive words into a statute which confers an unfettered discretion. Moreover, both Waller LJ (at para [26]) and Clarke LJ (at para [30]) were quite clear that the judge at first instance (Eady J) had misdirected himself in law and applied the "wrong test" in saying that such an order could be made only in exceptional circumstances.

42. As Clarke LJ said (at para [28]), "There is a spectrum of different circumstances which may arise so that it is difficult to lay down precise guidelines. Cases will vary greatly." He added (at para [29]), "All will depend upon the circumstances." At one end of the spectrum there will be the ‘professional’ McKenzie Friend who acts also as an advocate, the person, as Lord Woolf CJ put it (at para [20]), "setting themselves up as an unqualified advocate" or, as Clarke LJ put it (at para [28]), "holding himself out as providing advocacy services, whether for reward or not." There, as a general principle, the Court will make an order only in exceptional circumstances. At the other end of the spectrum there will be the McKenzie Friend who is the litigant’s spouse or partner, though even there, as Clarke LJ was careful to point out, the circumstances may vary widely. In between -- and Mr Holden falls somewhere between the two ends of the spectrum though as it seems to me much nearer the spouse / partner McKenzie Friend end of the spectrum than the “professional” McKenzie Friend advocate end of the spectrum -- there will be a very wide range of circumstances which it is futile and indeed impossible to classify or categorise.

43. At the end of the day one has to remember that, as Lord Woolf CJ put it (at para [17]), "The overriding objective is that the courts should do justice." And one also has to bear in mind, as he observed, the reality that legal aid is not available as readily as it was in the past, leading, as the President’s Guidance: McKenzie Friend [2008] 2 FLR 110 comments, to the growth of litigants in person in all levels of family court. Moreover, as the Guidance reminds us, "the attendance of a McKenzie Friend will often be of advantage to the Court in ensuring the litigant-in-person receives a fair hearing." Similarly, in my experience, there will be occasions -- sometimes; sometimes not -- when the grant of rights of audience to a McKenzie Friend will, to adopt the President’s words, be of advantage to the Court in ensuring the litigant-in-person receives a fair hearing. Sometimes, indeed, it will be essential if justice is to be done and, equally importantly, perceived by the litigant-in-person as having been done.

This judgement led Potter to revise the President’s Guidance, adding this paragraph:

While the Court should be slow to grant any application under s.27 or s.28 of the Act from a MF, it should be prepared to do so for good reason bearing in mind the general objective set out in section 17(1) and the general principle set out in section 17(3) of the Act and all the circumstances of the case. Such circumstances are likely to vary greatly: see paragraphs 40-42 of the judgment of Munby J. in Re N (A child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam).

Before it was superseded by the Legal Services Act 2007 the Courts and Legal Services Act 1990 at Section 17(1) established the general objective of making ‘provision for new or better ways of providing [legal] services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice’.

Section 17(3) set out the rules which apply to professional advocates or to members of other bodies which provide legal services and which have enforceable rules of conduct. We would argue strongly, particularly in light of the Steve Stephenson incident, that any organisation which provides its members with McKenzies or other advice should have clear, simple and enforceable rules of conduct.

If you wish your McKenzie to be granted right of audience you must make the request at the start of the hearing. It is unlikely that the Court will allow your McKenzie to stand in for you throughout the entire hearing, and more likely that he will be allowed audience only at certain points. The circumstances do not have to be ‘exceptional’ but it will help your case if you can demonstrate that they are by using as many of the following points as apply to you:

· You are of low intelligence;

· You have a speech impediment;

· You are in poor health;

· You do not have the financial wherewithal to buy professional representation and have been refused legal aid. You will probably also need to show you have tried the Pro Bono Unit;

· You have previously been represented and have run out of funds;

· Your solicitor is no longer representing you;

· The other party is represented and it is in the interests of justice that you have someone speaking for you who understands the system;

· You are in a highly emotional state;

· Your McKenzie will be able to represent you more efficiently and expeditiously than you could yourself;

· You need your McKenzie to cross examine your children’s other parent or a witness you would find it distressing to cross examine yourself, and whom you would be unable to cross examine calmly or rationally;

· You need your McKenzie to argue a point of law you do not yourself fully understand.

In practice many judges are allowing McKenzies right of audience without obliging litigants to make these arguments. In an overloaded system it eases the pressure on it by enabling arguments to be put more clearly and efficiently and it saves valuable court time as well as- keeping hostilities to a minimum. This has to be in the interests of justice.

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