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8. Robin Spon-Smith's article on McKenzie Friends

Robin Spon-Smiths article on the role of the McKenzie Friend.

McKenzie Friends

Robin Spon-Smith reviews the latest thinking on the role of McKenzie Friends and the impact of the judgment in 'In the matter of the children of Mr O'Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759, [2005] 2 FLR 967'.

Robin Spon-Smith LLM, Barrister, 1 Hare Court

It has been the fate of a number of litigants, over the years, to lend their names to various types of court order or forensic procedures. In the family law field Mr & Mrs Calderbank and Mr & Mrs Duxbury are among those who come readily to mind. Although their activities are not restricted to the family courts those courts have in recent times been much exercised by the phenomenon of the 'McKenzie friend', who owes his appellation to the divorce litigation between Mr & Mrs McKenzie, and in particular to Mr McKenzie's appeal to the Court of Appeal reported as McKenzie v McKenzie [1970] 3 WLR 472.

A McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, helping to organise the documents, and quietly making suggestions – for example as to questions to put to a witness. Although usually a non-lawyer, the McKenzie friend should not be thought of as a species of lay advocate and has no right to address the court.

The McKenzie case was a defended divorce case. The judge had refused to permit Mr McKenzie to be accompanied by a friend who wished to sit beside him in court. In holding that the judge should not have refused the Court of Appeal was not making new law. The court cited with approval the statement of Lord Tenterden CJ in Collier v Hicks (1831) 2 B & Ad 663 that: 'Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice … '.

The topic did not return to the law reports until R v Leicester City Justices, ex p. Barrow [1991] 2 QB 260 (CA) where it was said that –

'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.'

Neither in the McKenzie case nor in the Leicester City Justices case were there any privacy or confidentiality issues. Being the trial of a divorce petition the McKenzie case was heard in open court. The hearing in the Leicester Magistrates' Court took place when the court was open to the press, although closed to the public because of earlier disturbances.

For reasons which are debatable, and are not pertinent to this article, the number of litigants in person has increased noticeably in the last few years. Quite a number of these have been fathers involved in residence or contact proceedings relating to their children. Many of them, encouraged and assisted by organisations such as Families Need Fathers, have wished to be accompanied by McKenzie friends. As such cases are almost always heard in chambers, with only the parties and their legal representatives normally permitted to be present, this has given rise to a problem which does not affect open court hearings. On occasions McKenzie friends have been excluded from chambers hearings following an objection by the other party or on the judge's own initiative. However, the trend demonstrated by the reported cases has been quite strongly in favour of allowing a party the services of a McKenzie friend even in chambers hearings.

In Re H (Chambers Proceedings: McKenzie Friend) [1997] 2 FLR 423 the Court of Appeal held that a Recorder should not have refused to allow a father to have a McKenzie friend in an application for contact to his daughter heard in chambers.

In Re G (Chambers Proceedings: McKenzie Friend) [1999] 2 FLR 59 the Court of Appeal upheld the decision of Waite J to refuse to allow a party to wardship proceedings to have a McKenzie friend on the basis that the decision as to who was permitted to be present in a chambers matter was one for the judge alone. The case was an unusual one in that the proposed McKenzie friend was a solicitor who was to be paid for his services but did not wish to put himself on the record. Although not reported until 1999 the appeal was actually heard in July 1991 and therefore preceded Re H (Chambers Proceedings: McKenzie Friend).

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 (with whom Roch LJ agreed) stated that it was 'a matter of regret' that the father had been denied the assistance of a McKenzie friend and said (p.77) 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.

In R v Bow County Court ex p. 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.

In Re H (McKenzie Friend: Pre-Trial Determination) [2001] EWCA Civ 1444, [2002] 1 FLR 39, the judge refused the father's application to be assisted by a McKenzie friend on the ground that, having listened to and observed the proposed McKenzie friend, he felt that, with the father on his own, the hearing would be fairer, and less adversarial and legalistic. Allowing the father's appeal the Court of Appeal stated that the presumption in favour of permitting a McKenzie friend 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 contributed to the adversariality.

The Court of Appeal has recently taken the opportunity of reviewing the legal position of McKenzie friends in three conjoined appeals reported as In the matter of the children of Mr O'Connell, Mr Whelan and Mr Watson [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 the 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), r.4.23.

In a judgment which contained some quite strong criticisms of two of the first instance judges the Court of Appeal took the opportunity of emphasising that the presumption in favour of permitting a McKenzie friend is a strong one. They also 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 observed in particular that—

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.

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. In the same way that judicial continuity is important, the McKenzie friend, if she/he is to be involved, will be most useful to the litigant in person and to the court if she/he is in a position to advise the litigant throughout.

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 her/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 her/his appointment in the first place. In any event, it is helpful for the proposed McKenzie friend to be present so that any concerns about him can be ventilated in her/his presence, and so that the judge can satisfy herself/himself that the McKenzie friend fully understands her/his role (and in particular the fact that disclosure of confidential court documents is made to her/him for the purposes of the proceedings only) and that the McKenzie friend will abide by the court's procedural rules.

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.

The following do not, of themselves, constitute 'compelling reasons' for refusing the assistance of a McKenzie friend:

(1) 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;
(2) 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;
(3) 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;
(4) that the proceedings are confidential and that the court papers contain sensitive information relating to the family's affairs.

The court also expressed the view that there was no reason in principle why a litigant in person should not show the court papers to his court-sanctioned McKenzie friend, provided that the latter appreciated that disclosure was being made only for the purpose of enabling the litigant effectively to present his case. This aspect of the court's judgment is now of historical interest only following the introduction of an entirely new provision in the FPR, namely r.10.20A. This is quite a lengthy rule which governs the communication of information relating to any proceedings held in private to which the FPR apply where the proceedings—

(1) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(2) are brought under the Children Act 1989; or
(3) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.

The rule expressly permits the communication of any information relating to the proceedings by a party to the proceedings to a 'lay adviser or McKenzie friend'. A lay adviser is defined by the rule as 'a non-professional person who gives lay advice on behalf of an organisation in the lay advice sector' and McKenzie friend as 'any person permitted by a court to sit beside an unrepresented litigant in court to assist that litigant by prompting, taking notes and giving him advice'.

The Court of Appeal referred in passing to the fact that in R v Leicester City Justices and Another ex parte Barrow and Another [1991] 2 QB 260 at 289 Lord Donaldson of Lymington MR expressed -

'the fervent hope … that we shall hear no more of "McKenzie friends" as if they were a form of unqualified legal assistant known to the law. Such terminology obscures the real issue which is fairness or unfairness. Let the "McKenzie friend" join the "Piltdown man" in decent obscurity.'

The court noted, however, that the passage of time had demonstrated that the term McKenzie friend had become well-recognised and understood by lawyers and litigants alike, and expressed the view that the term was here to stay. That seems to be confirmed by the fact that the McKenzie friend has now earned himself a mention in rules of court.

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