Navigating the family court can be complex and challenging, especially for those who are not using legal professionals, and are, instead, representing themselves. In such cases, some people decide to opt for the assistance of a McKenzie Friend who can provide support and guidance. In this article, we explore the concept of McKenzie Friends, their role, limitations, and the benefits and drawbacks that come with using them in family law disputes.
What is a McKenzie Friend?
A McKenzie Friend is someone who assists a litigant in person in court proceedings. The name comes from a historic case, McKenzie v McKenzie, which established the right for a non-legally qualified individual to accompany and provide support to a litigant both in and out of court.
Their primary role is to provide support, practical assistance, and guidance during court hearings by taking notes, assisting with case preparation, suggesting questions, and offering general information about court processes, rules, and procedures.
What are the benefits of using a McKenzie Friend?
The presence of a McKenzie Friend can have a variety of benefits for unrepresented parties.
- For those who cannot afford legal representation, McKenzie Friends can provide an avenue through which the litigant can access the legal system and secure a fair hearing
- McKenzie Friends offer emotional support, reassurance, and practical assistance, helping to reduce stress and anxiety through the process
- By explaining court procedures, rules, and terminology, McKenzie Friends can help litigants better understand the proceedings and make informed decisions
- Having a trusted individual by their side can boost a litigant’s confidence, enabling them to present their case more effectively.
- McKenzie Friends increase access to justice and widen consumer choice.
- The benefits of having a McKenzie Friend are being increasingly recognised by judges and lawyers, as they see cases tend to progress more smoothly when they are involved.
What are the drawbacks of using a McKenzie Friend?
Although McKenzie Friends can provide valuable assistance, it is important to be aware of their limitations and boundaries. Here are some of the most common:
- McKenzie Friends have no right of audience and therefore cannot address the court directly, present arguments or speak on behalf of the litigant
- They cannot provide legal advice or speak for the litigant’s case in the same way as a qualified solicitor can
- McKenzie Friends must seek the permission from the court to accompany the litigant. The court has the discretion to refuse or limit their participation if it is considered inappropriate or disruptive to the proceedings.
- McKenzie Friends are unregulated. Essentially, anyone can be one from a family member or friend to more experienced McKenzie Friends whose services you pay for.
- Their services are not always free. If you use a family member or friend, they are unlikely to charge you for their help. While some volunteer McKenzie Friends attached to charities will offer their services for free, others will charge a fee, and rates can vary greatly. As they are unregulated, there is no fixed rate in terms of payment, and costs can’t be recovered from the other side if you win.
- Agenda driven McKenzie Friends who are motivated by their own negative experience may lack objectivity and inadvertently push a personal viewpoint onto the litigant.
- Most McKenzie Friends are not insured, therefore there is no protection if something goes wrong
- Breach of privacy – McKenzie Friends may be entrusted with highly sensitive information, but they are less likely than lawyers to have robust systems in place to protect this.
- McKenzie Friends rarely have legal qualifications, relying on their own experience of the court system
Does the judge have to agree to let my McKenzie Friend attend the hearing?
While individuals representing themselves in court have the right to seek assistance from a McKenzie Friend, the court retains the discretion to permit or deny such assistance at any time.
The key points regarding the involvement of a McKenzie Friend are:
- Request for Assistance: The litigant must request permission from the court for a McKenzie Friend to assist them during the hearing.
- Judge’s Discretion: The judge will decide whether to permit the McKenzie Friend based on several factors, including the behaviour and suitability of the McKenzie Friend.
- Role of a McKenzie Friend: If allowed, the McKenzie Friend can provide moral support, take notes, help with case papers, and quietly give advice. They cannot, however, address the court directly or act as the litigant’s advocate.
The court typically grants permission unless there is a compelling reason not to, such as the McKenzie Friend disrupting proceedings or having a conflict of interest.
What reasons does a judge need to refuse a McKenzie Friend?
A judge may refuse a McKenzie Friend for several reasons. These generally centre around concerns about the proper conduct and fairness of the court proceedings. Here are some common reasons a judge might deny the presence of a McKenzie Friend in court if:
- They have previously disrupted court proceedings or there is a concern that they might disrupt the current hearing, their presence can be denied.
- They are likely to interfere with the administration of justice or act in a way that is contrary to the interests of justice.
- There are concerns about the McKenzie Friend’s ability to respect the confidentiality of the court proceedings.
- The McKenzie Friend has a conflict of interest, such as being a witness in the case or having a vested interest in the outcome.
- There is a history of inappropriate behaviour in court, or they have been excluded from previous hearings for any form of misconduct.
- They lack the necessary competence to assist the litigant effectively, particularly if their involvement could hinder the fair progress of the case.
- Their presence might intimidate a party or witness, or exert undue influence over them.
Judges exercise discretion in each case and must balance the litigant’s right to assistance with the need to maintain order and fairness in the court. The decision is made on a case-by-case basis, considering the specific circumstances and behaviour of the McKenzie Friend in question.
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