McKenzie Friends
Even when self representing, you don't have to face court hearings or the process alone. A McKenzie Friend can be a very important part of your court journey, when choosing them, it's important that they are trustworthy and can follow court etiquette. They have to work in your best interest and although they can advise you quietly in court, for example ask you whether you're happy with a potential outcome, they cannot give unqualified legal advice.
The Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] outlines what legal duties a McKenzie Friend has, one legal duty is to maintain confidentiality about a case, which means they are not allowed to talk to other people about what they see or hear in court or read in the court papers. McKenzie Friends must also confirm to the court that they have no interest in the outcome of the case, i.e. that they are your current partner or are seeking to have your child(ren) live with them as part of the arrangements.
The Right to Reasonable Assistance
You have the right to a McKenzie Friend, it's important to understand what they can and can't do.
McKenzie Friends may:
Provide moral support
Take notes in court hearings
Help with case papers by writing down what you would like to say on the court applications and in the position statement.
Quietly give advice on any aspect of the conduct of the case, they cannot give legal advice or advise you to agree to anything. They can point out if a barrister is being aggressive or suggest you take a break.
Provide reassurance and practical support in a very stressful environment.
McKenzie Friends may not
Act as your 'agent' in relation to the proceedings. They cannot act for you as your legal representative would if you had one.
Manage your case outside court, for example by signing court documents or replying to solicitors or barristers.
Address the court by speaking to the judge, present your case or evidence, called 'making oral submissions' or examine witnesses or question your ex partner, unless they have specifically been granted permission by the court.
Paid McKenzie Friends
There are professional McKenzie Friends who get paid to provide McKenzie Friend assistance. Before agreeing to pay for a McKenzie Friend, think about the following questions:
Have you checked whether you can get legal aid?
Are they a member of the Society of Professional McKenzie Friends?
How much is the McKenzie Friend charging?
Remember you have options to ask solicitors and barristers for advice in a way that is affordable to you. Some McKenzie Friends charge more than trainee solicitors per hour, if you just need help with a C100 application form or C1A form, or you want a solicitor to look at it for you, some firms will allow you to book an hour of time for just this purpose.
What if your ex partner has a McKenzie Friend?
Your ex partner's McKenzie Friend also has to follow the same rules as yours. Any aggressive, threatening or harassing behaviour is a criminal offence, if you experience this, contact the police and ask the court to remove the McKenzie Friend.
Exercising the Right to Reasonable Assistance
You ordinarily have the right to reasonable assistance from a McKenzie Friend but it's important to know that the court has the right to refuse this assistance. The court has to be satisfied that the assistance is not necessary.
If you want a McKenzie Friend you need to notify the court when you get your hearing notice, using the 'Notification of McKenzie Friend' form below.
Your McKenzie Friend needs to supply a short CV and statement outlining how their experience is relevant to supporting you, confirming that they have no interest in the outcome of your case and that they understand that the case is confidential.
If your ex partner rejects your request for a McKenzie Friend or the court rejects you having a McKenzie Friend, it is for the court and/or your ex partner to provide compelling evidence as to why you should not receive the assistance.
In the first hearing, if your ex partner or the court is objecting to the presence of your McKenzie Friend, you have the right to argue in that first hearing as to why you should be allowed this type of assistance. Your McKenzie Friend should be allowed into the first hearing and be allowed to assist you until a final decision has been made as to whether they're allowed to continue supporting you.
The court or your ex partner can not use these reasons to justify refusing McKenzie Friend assistance:
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The case or application is simple or straightforward, or is, for instance, a directions or case management hearing;
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You appear capable of conducting the case without assistance;
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You are unrepresented through choice;
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Your ex partner is not represented;
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The proposed McKenzie Friend belongs to an organisation that promotes a particular cause e.g. a domestic abuse charity;
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The proceedings are confidential and the court papers contain sensitive information relating to a family’s affairs
The court may refuse your McKenzie Friend if they find evidence of the person trying to use you in court, if the person has a criminal conviction or if they cannot understand the requirements of confidentiality.
Your ex partner's counsel must give you documents in plenty of time in order for you to prepare properly with your McKenzie Friend.
Rights of audience and rights to conduct litigation
Courts and Legal Services Act 1990 (Sections 27 & 28)
McKenzie Friends do not have the right to speak to the judge, opposing counsel or present any parts of your case in court. If they do interrupt opposing counsel, or try to speak to the judge they will be cautioned and may be excluded from the rest of the case.
There are certain circumstances where the court may grant permission to the McKenzie Friend to speak for you, but this is not guaranteed and you will need to ask the court permission:
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The McKenzie Friend is a close relative of yours.
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Health problems stop you from addressing the court, or presenting your case, and the you cannot afford to pay for a qualified legal representative;
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You are unable to properly present your case due to severe nerves, or an access need and if that may unnecessarily prolong the proceedings, the court may allow your McKenzie Friend to speak for you.
You must ask the court at the beginning of the hearing whether they will allow your McKenzie Friend to speak for you, there are two separate rights to ask for and you must explain why you need your McKenzie Friend to do either or both of these actions:
Right of Audience
This means the right to speak on your behalf in court, for example making oral submissions and present your case, cross-examining witnesses, CAFCASS officers or ex partner and addressing the judge.
The judge has discretion under of the Courts and Legal Services Act 1990 (section 27(2)(c)) to grant your request:
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If you have particular difficulties such as emotional distress, disability, literacy or language issues that make it very hard for you to speak.
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If it will help the court deal with the case more efficiently.
Right to Conduct Litigation
This means being able to formally manage and run the case for you, including signing and sending documents to the court, managing deadlines, and formally acting in your place.
A judge may grant this power if:
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You cannot possibly manage your paperwork, correspondence, and case on your own due to severe disability or access need.
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If it is in the interests of justice and proportionate for your supporter to take over to ensure you get a fair access to the court process.
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This is considered an exceptional circumstance, because courts are cautious about allowing unregulated people to take on these powers and control your case.