Can you decide who is to be your unpaid advocate? Eleanor Battie

mckenzie-friend11RE F (CHILDREN) 14 May 2013, Court of Appeal – extempore so currently only available as a Lawtel summary (£)

A topical case, this, given legal aid cutbacks. It concerns the ability of unrepresented litigants to choose those to help them out as advocates in court. Not an unconstrained right, as this case demonstrates. The High Court ruled that a judge had been entitled to refuse an application for a particular person to act as a McKenzie friend despite that individual not being present in court at the time of the application. The Court of Appeal upheld that decision. 

This application for permission to appeal resulted from the refusal by a family judge to permit a person to act as a McKenzie friend within care proceedings.

The applicant’s two children had been taken into care and findings had been made that one of them had suffered a non-accidental injury inflicted by the applicant. Thereafter, a final care order was made and the Local Authority applied for adoption and to terminate contact. The applicant then sought publicity for her case, which was prohibited by the court.

The applicant applied for permission to appeal against the care order and was assisted in this application by her McKenzie friend as, by then, she was not entitled to public funding and had no legal representation.

Within the appeal, the Applicant produced a statement supported by a number of documents which raised concerns with the Local Authority regarding the McKenzie friend acting for the applicant. They opposed the application for her to act as McKenzie friend.

The judge refused the application for the McKenzie friend to assist in court, after which the Applicant refused to take part in the proceedings on the basis that her rights under the European Convention on Human Rights 1950 art.6 had been infringed.

The Judge held that there was a presumption in favour of allowing a litigant in person to have the benefit of the assistance of a Mackenzie friend, O (Children) (Hearing in Private: Assistance), Re [2005] EWCA Civ 759, [2006] Fam. 1 considered. The relevant Practice Guidance also assumed that the proposed McKenzie friend would be in court on the application for permission to act. However, the judge’s decision in this case could not be faulted. He had seen the statement produced by the McKenzie friend. It was a striking document. It made clear that the proposed McKenzie friend:

  1. Had embarked on a campaign concerning the family justice system and the conduct of the local authority;
  2. That she did not respect the confidentiality of the family justice system in other cases and in the instant case, and
  3. That she did not understand the role of a McKenzie friend, which was to assist with presentation of the case in court in a neutral manner.

It was clear that the McKenzie friend had a personal interest in the instant case and expected to give evidence to make good her contentions. Her ability to be a McKenzie friend had been compromised by the statement. She claimed that she had the permission of those involved to disclose details of other cases, but the confidentiality of family proceedings was a matter for the court. The applicant was entitled to a McKenzie friend, but her current choice was not suitable for that role. The presence of the McKenzie friend in court would not have changed the Judge’s view. He acted within the ambit of his discretion on the basis that the McKenzie friend might not respect the confidentiality of the proceedings.

Comment

As the Legal Aid Agency continue to tighten the purse strings and litigants are forced to apply to the courts without the assistance of legal representation, McKenzie friends are likely to become an increasingly present feature of the family courts. Although there is a presumption of allowing a litigant to be assisted by a McKenzie friend and it is to be expected that they would be present at the time the application is made, judges retain significant discretion to consider the appropriateness or otherwise of the proposed McKenzie friend.

Eleanor Battie is a barrister in Crown Office Row Chambers Brighton

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One thought on “Can you decide who is to be your unpaid advocate? Eleanor Battie

  1. In my view the Judge did not act with discretion appropriate to the case, where the appeal courts have reasoned: ” If there were evidence that the presence of a McKenzie friend was sought for an improper purpose, that could justify refusal of permission. There does not seem to have been any such evidence in this case, — as the MKF may have embarked on campaigns and if evidence was admissible where so ever it had been obtained provided it was relevant and the law, PR and CPR would apply and discretion is not relevant. Also where the appeal court has stated; “In general the fact that a proposed McKenzie friend belongs to an organisation which promotes a particular cause or interest is no reason for not allowing him to undertake the role. Members of Families Need Fathers – an organisation whose cause is no secret – regularly act as McKenzie friends.” I find it hard to reconcile the judicial reasons with reasons stated in this comment taken from; Re [2005] EWCA Civ 759, [2006] Fam. If there is any weakness in the reasons given by a judge in making decisions then the reasoning is invalid and the decision should not have been made. As Always I welcome coment or feedback

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