About McKenzie Friends
What is a McKenzie friend?
The term 'McKenzie friend', is a formally accepted legal term, incorporated in statutory instruments and official judicial guidance. Nowadays the term covers people who generally help a Litigant in Person throughout the course of his/her litigation, perhaps help with completing application forms, with correspondence, with devising strategies, with the preparation of statements, as well as undertaking the traditional aspect of accompanying the litigant to court.
Who are they? Fee-earning or volunteer?
Most volunteers are in full-time work and simply don't have the time to contribute as fully as they may like to. Therefore others have stepped in to meet the demand for this level of service. They may be offering full litigation support - acting as paralegals and doing legal work though having no professional qualifications. The Charity appreciates that its volunteers cannot meet the present high demand for McKenzie friends. Parents can get a quality, low-cost service from some professional, experienced and knowledgeable McKenzie friends and litigation assistants; but there are some charlatans operating in the field. Beware of them: there is no quality control or option for redress.
Do I have a legal right to a McKenzie friend?
It is now established beyond reasonable question that Litigants in Person in family proceedings will almost always be allowed a McKenzie friend. Case law supports this. For instance, in the 2005 judgment O'Connell, Whelan and Watson ruled that McKenzie friends could only be refused in exceptional circumstances. Additionally, the Court gave the opinion, contrary to established law, that a McKenzie friend should be allowed to see all the case papers. The following do not constitute good reasons to refuse: the Litigant in Person is sufficiently competent to conduct the case without help; that it is only a preliminary/directions hearing; that sensitive family matters are to be addressed.
For details, please see the factsheet.
What should I do if I'm refused?
Remember, you do not have an absolute right to have a McKenzie friend. Your judge may refuse, but is required to explain why s/he is refusing you this help.
You should direct the judge to the leading case authority and be prepared to hand up a copy of the relevant sections of that judgment. See the factsheet for examples. Then you have two options:
- to indicate to the judge, preferably in writing, in a calm, moderate manner, that you chose not to continue with the hearing since you are being denied assistance. Ask for an adjournment to consider the ruling and to give you time to prepare this response. This will not endear you to the judge, and the delay may be harmful to your case and your child's best interests.
- to continue with the hearing, under duress, explaining and asking for it to be recorded that you believe you will be disadvantaged, that the proceedings deny you your rights under Article 6 of the Human Rights Act 1998, and that should you choose to appeal any order made, this would constitute one of your grounds of appeal.
What preparatory documents do I need?
Prior notification letter
Ideally your letter should inform the Court (and the other party) who your McKenzie friend will be. However, this is not always practical or desirable. See the factsheet for details. If there is nothing untoward about your McKenzie friend and his/her involvement, we suggest that you either write to the court and the other party informing them generally that it is your intention to have a McKenzie friend assist you at the hearing but as yet you are unsure who s/he will be. However, the 2008 President's Guidance should be followed if possible.
McKenzie friend CV
Though not strictly necessary it is helpful for the McKenzie friend to provide a brief CV in accordance with the Court of Appeal recommendation. Doing so can result in the acceptance of the McKenzie friend being nodded through. Include the statements that the McKenzie friend has no personal involvement or interest in the case and that the McKenzie friend is familiar with the rules about confidentiality in family proceedings. Do not brag about experience, but if the McKenzie friend has performed this role before it will reassure any judge that they know how to conduct themselves. Membership of FNF will generally be counted as favourable.
Who can I/can't I have as a McKenzie friend?
Your McKenzie friend does not have to be an actual friend, and some judges may not appreciate this. The friend can be legally trained and be a barrister or solicitor. They can be charging fees.
A witness in the proceedings cannot be a McKenzie friend. Family members should be avoided.
Ultimately, who is or isn't allowed is up to the judge's discretion.
What about confidential documents?
Confidentiality of documents is something addressed in the Family Proceedings Rules 1991 (FPR1991) [at 4.23 and 10.20]. However, these have been amended to explicitly allow communicating information about the proceedings to a McKenzie friend and a new Rule 10.20A has been inserted. The relevant amendment arises from the Statutory Instrument (SI) 2005 No.176 L.18. The annual publication 'Hershman & McFarlane Children Act Handbook' from Jordan Publishing will have the most up-to-date version of the FPR1991 (as well as that for the Children Act 1989). The most relevant part of Rule 10.20A is reproduced in Appendix 3 to the factsheet.
What else should I bear in mind?
A volunteer McKenzie friend should not be out of pocket at the end of the day. Please do not forget this.
In the course of proceedings you may be required to go to court several, even many, times. A McKenzie friend may not be available for subsequent hearings.
You're in charge
Don't let your McKenzie friend run the case for you. Be prepared to question what you are told, even factual material. If in doubt check with others, perhaps by putting queries up on the FNF Self-help email forum.
Could you give something back?
You could have been given hours and hours of work by a complete stranger. Could you reciprocate by giving similar help to another deserving Litigant in Person?
Can FNF provide me with a McKenzie friend?
McKenzie friends may be obtained through FNF's network of volunteers. Nothing can be guaranteed by way of service, and no liability accepted by either FNF or the volunteer. FNF has no accreditation procedure for McKenzie friends and is not responsible for the work or conduct of any McKenzie friend you may have encountered through FNF. The relationship is entirely between you and that person. Volunteer McKenzie friends can be contacted through the FNF branch system. The contact information for commercial McKenzie Friends can be obtained on this link.
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