McKenzie friends are never foes

Many of you will
have watched the BBC Panorama programme broadcast in late March entitled ‘DIY Justice’,
in which the reporter Raphael Rowe met the parents fighting for ‘access’ to their children without any legal assistance. He reported on ‘cuts to legal aid that mean [parents] must prepare their own cases and represent themselves in court’.

As an aside, it is a pity the programme’s advisers did not tell him that the titles ‘custody’ and ‘access’ disappeared years ago, and that the concept of
a winner is anathema to all judges.

The programme did, of course, touch a chord with me, and I thought about how much these parties would have been helped by McKenzie friends when they had their days in court.

The role of McKenzie friends developed following a decision in McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472, supplemented by Practice Guidance: McKenzie Friends [2010] 2 FLR 962, and in most cases district judges have welcomed their assistance to litigants in person just as I have.

Moral support

In Blackpool, where I mostly sit, we have a template form to be completed by the litigant in person and their McKenzie friend, which sets out their full name and address, and their relationship to the litigant in person. The McKenzie friend must state whether they are being paid to help, confirm that they have read the guidance provided on the form and agree to comply with it, and, most importantly, that they understand they may only provide moral support, take notes, help with papers, and quietly give advice.

McKenzie friends are told
on this form that they may not address the court, make oral submissions, or examine witnesses on behalf of the litigant in person, and that
they must not have a personal interest in the outcome of
the proceedings.

Of course, if your client is concerned because of the identity of the McKenzie friend, or if they are known to your client as a nuisance, you
should let the district judge know at the start of the case, but do remember that the presumption to allow a McKenzie friend is a strong one.

District judges can, of course, refuse an application to allow a McKenzie friend at the start of a hearing, and can circumscribe that right during a hearing if it is found that the McKenzie friend may give, has given or is giving assistance which impedes the efficient administration of justice – though, of course,
most judges would give a warning first.

In my experience, judges will be reluctant to give a right of audience or a right to conduct litigation to a McKenzie friend, but it is not unknown.

Professional courtesy

Therefore, whether the McKenzie friend is there to assist a litigant in person or to be their advocate, I am always disappointed when
I find that a solicitor has not spoken either to the litigant in person or the McKenzie friend. When in practice I considered
it a professional, if not personal, courtesy to introduce myself at the very least. I hope you do so
as well.

Judges will also be encouraged if you to speak
to the McKenzie friend and
the litigant in person before
the hearing commences to see whether issues can be narrowed and an agreement reached. They may not be solicitors or counsel, they may have no legal training, but they are not aliens – they will speak the same language as you and may be shy in making an approach to you.

You may be able to assist the judge by explaining to them where they sit, how the judge is addressed, and in simple terms how the hearing will proceed. They will, I hope, be grateful, and so will the judge.

Please never treat them as a foe. SJ

District Judge Nigel Law sits at Blackpool County Court