A McKenzie friend is somebody who accompanies a litigant in person to a court hearing for the purpose of assisting him in such matters as taking notes, helping to organise the documents, and quietly making suggestions – for example as to questions to put to a witness. He or she may not address the court as of right although permission to do so on behalf of the litigant and in his presence could be given by the judge.
The number of McKenzie friends has increased dramatically in recent years alongside the noticeable increase in litigants in person. More and more people for financial or other reasons are appearing at court un-represented by lawyers and for them it is considerable help and comfort to be accompanied by a McKenzie friend. Very often this will be in family cases and a high proportion of the large number of fathers applying to the court over problems concerning contact or other difficulties with their children are unrepresented and wish to bring a friend with them to the hearing or be accompanied by a knowledgeable lay person. This is not however without problems.
The case of McKenzie which gave rise to the approval by the Court of Appeal for a litigant in person to have lay assistance was itsef a divorce case. As such it was heard in open court where the general public had a right to be present. Cases concerning children are heard in private and the public are not admitted. There are privacy and confidentiality issues to protect the child which were not present in the McKenzie case. This has led to instances where McKenzie friends have been excluded from hearings in private especially where the other side have objected.
These refusals have been considered by the Court of Appeal. In so doing the court confirmed that there was a strong presumption in favour of permitting a McKenzie friend to accompany a litigant in person. Furthermore a refusal could well breach the entitlement to a fair trial under the European Convention of Human Rights.
The purpose of allowing a litigant in person the assistance of a McKenzie friend is to further the interests of justice by achieving a level playing field and ensuring a fair hearing. This assistance should only be refused for the most compelling reasons which must be identified and explained carefully and fully to both the litigant in person and the would-be McKenzie friend.
The sooner a litigant in persons intention to be accompanied by a McKenzie friend in private family law proceedings relating to children, is made known to the court and the sooner the court’s agreement for the use of the particular McKenzie friend is obtained, the better. The McKenzie friend should be present when the application is made so that he can assist with any questions or objections which arise. Having a CV or written statement about himself is useful.
Although the court papers, statements, reports and other documents relating to children are highly confidential the courts have confirmed that there is no reason why these should not be shown to a McKenzie friend.