PLT Masthead 430

Masthead Local Govt - Child

LiPS and McKenzie friends - public law

Lexis Public Sector 146x219LexisPSL Local Government analyses the key issues where litigants in person and McKenzie friends are involved in public law children cases.

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Background

Every party to care proceedings is entitled to a fair hearing, and the parents and child are entitled to the protection of their art 6 rights (right to a fair trial) under the European Convention on Human Rights (ECHR), as incorporated into the Human Rights Act 1998. There is no obligation to use a solicitor, although in care proceedings, as opposed to private law children proceedings, legal aid remains available for both the child and the parents, and to anyone else with parental responsibility, regardless of means, so the majority of parents are legally represented. Litigants in person are comparatively rare in that context. In other proceedings, such as applications for the discharge of care orders, the legal aid position differs, and it is more common to find parents acting for themselves. Moreover, other relatives of the child (who do not have parental responsibility) may become parties to care proceedings, and may not be able to afford legal representation.

References:

HRA 1998, Sch 1, Pt I

There are three broad situations that may arise in public children proceedings:

  • a litigant representing themselves, conducting their own case, and acting as their own advocate
  • such a person exercising their rights of audience, but with the help of a McKenzie friend, and
  • where a litigant in person asks that another person, who is not a qualified lawyer with rights of audience, should be allowed to exercise rights of audience on their behalf

In each case, the court and the local authority must ensure that the litigant’s ECHR, art 6 rights are not infringed.

References:

HRA 1998, s 6

The court must ensure all reasonable assistance is offered to the litigant in person in putting their case. It is unrealistic to require advocates for other parties, who oppose the litigant in person’s application, to assist in promoting it, whether by framing the questions to be asked of other parties or a reticence to challenge the contrary evidence. But an advocate must not gain an unfair advantage for their client because of the disadvantaged status of the litigant in person and must draw to the attention of the court any mistake in law or fact articulated, even if it favours their client.

References:

Re W (children) (special guardianship order: local authority’s appeal) [2014] EWCA Civ 405

The children’s guardian is not a neutral party and while they must provide the court with such other assistance that it may require, the court must never ask for such help in a way that renders the guardian, or their advocate, effectively engaging in advocacy on behalf of a party whose position is, or can be perceived to be, in conflict with that of the child. Nor must the guardian, in their inspection of records, advice to the court and service of documents, be seen as an advocate to the court.

References:

FPR 2010, SI 2010/2955, 16.20

Re W (children) (special guardianship order: local authority’s appeal) [2014] EWCA Civ 405

If a litigant in person is the applicant in proceedings, the court bundle must be prepared by the first listed respondent who is not also a litigant in person. See also Practice Note: Preparation of court bundles in family proceedings.

References:

FPR 2010, PD 27A

Although some procedural latitude might be justified in respect of an appeal by a litigant in person, the appeal procedure under FPR 2010, SI 2010/2955, Pt 30 is neither complicated nor onerous. The fact that an applicant for permission to appeal is a litigant in person is not a reason for relaxing or ignoring the ordinary procedural structure of an appeal or the requirements of the rules.

References:

Re D (children) (placement orders: appeal) [2015] EWCA Civ 409, [2016] 1 FLR 249

 

Practice guidance

The Bar Council, CILEx and the Law Society issued new guidelines on dealing with litigants in person in June 2015. The guidelines discuss the relationship between the client's interest and the interests of the administration of justice, and the extent to which a lawyer can properly provide assistance to a litigant in person. The guidelines also discuss the role of McKenzie friends. The guidelines are supplemented by notes to explain a lawyer's duties to their client and their responsibilities to the court, that may be given to a client or to a litigant in person.

Note that the Judicial Executive Board issued a consultation paper in February 2016 proposing reforms to the existing guidance in relation to McKenzie friends and the following guidelines may therefore be subject to amendment in due course. See News Analysis: Consultation recommends codified rules for McKenzie friends and fee ban.

The President of the Family Division and the Master of the Rolls issued joint guidance, Practice Guidance: McKenzie Friends (Civil and Family Courts) in 2010 that provides, inter alia, that:

References:

Practice Guidance: McKenzie Friends (Civil and Family Courts) [2010] 2 FLR 962

H (children) [2012] EWCA Civ 1797, [2012] All ER (D) 124 (Jun)

  • litigants in person ordinarily have a right to have reasonable assistance from a McKenzie friend, but the litigant remains a litigant in person, and the McKenzie friend has no right to act as advocate or conduct the litigation—the court retains the right to refuse to permit such help, and may do so ‘where it is satisfied that, in that case, the interests of justice and fairness’ do not require it
  • the McKenzie friend may provide moral support, take notes, help with case papers, and quietly give advice—the McKenzie friend may not act as the litigant’s agent, manage their cases outside court (eg signing court documents), address the court, examine witnesses or make oral submissions
  • for private hearings, ie the vast majority of care hearings, the litigant must justify the presence of the McKenzie friend in court, although there is a strong presumption in favour of allowing a Mckenzie friend to be present
  • the following factors are not reasons for the court to refuse to allow a McKenzie friend to be present:

- the case, application, directions hearing or case management hearing is simple or straightforward

- the litigant appears able to conduct the case without help

- the litigant has chosen to be unrepresented by a qualified lawyer

- the other party is unrepresented

- the proposed McKenzie friend belongs to an organisation that promotes a cause, or

- the proceedings are confidential and the court papers contain sensitive information about the family’s affairs

  • the request can be refused or rescinded if the appointment has undermined, or might undermine, the efficient administration of justice—the following factors are examples of reasons for the court to validly refuse an application for a litigant in person to be assisted by a Mckenzie friend:

- the help is being provided for an improper purpose

- the assistance is unreasonable in nature or degree

- the McKenzie friend is subject to a civil proceedings or civil restraint order

- the McKenzie friend is using the litigant as a puppet

- the McKenzie friend is directly or indirectly conducting the litigation, or

- the court is not satisfied that the McKenzie friend fully understands the duty of confidentiality

  • litigants can lawfully agree to pay fees to McKenzie friends for reasonable assistance in or out of court, such as for carrying out clerical or mechanical activities (eg photocopying, preparing bundles, serving papers), or for the provision of legal advice, but such fees cannot lawfully be recovered from the other parties

Only an ‘authorised’ person or an ‘exempt person’ can carry out ‘reserved legal activities’, which include conducting litigation and exercising rights of audience. The court has discretion to grant an exemption to conduct the litigation or act as an advocate for the litigant in person. On whether a McKenzie friend should have rights of audience the Practice Guidance: McKenzie Friends (Civil and Family Courts) states that:

References:

LSA 2007, s 19, Sch 3

Practice Guidance: McKenzie Friends (Civil and Family Courts) [2010] 2 FLR 962

  • McKenzie friends have no right of audience or right to conduct litigation—it is a criminal offence to do so, unless appropriately qualified or the court grants such rights for the case in question
  • the courts should be slow to grant such rights to any lay person, including a McKenzie friend
  • any application for rights of audience needs very careful consideration, and should only be granted for good reason, taking into account the specific facts of the case in question, and not granted for mere convenience, automatically or without due consideration — it is for the litigant to persuade the court
  • past examples of such justification have included:

- the person is a close relative

- health problems prevent the litigant from addressing the court or conducting the litigation, and they cannot afford to pay for a lawyer, and

- the litigant is relatively inarticulate, and prompting may prolong the proceedings unnecessarily

  • the grant of such rights to those who hold themselves out as professional advocates or professional McKenzie friends, or who seek to exercise those rights on a regular basis, will only be granted in exceptional circumstances — to do otherwise would tend to subvert Parliament’s will
  • if the court has not granted the right to conduct litigation, fees cannot be lawfully recovered from the litigant or the other parties — if the court grants the right, subsequently incurred fees can in principle be recovered from the litigant, but not the other parties
  • once the court has granted a right of audience, fees for advocacy are in principle recoverable from the litigant, and also from the opposing parties as recoverable disbursements

A judge has a wide discretion, as long as they have regard to the guidance, in whether to allow a person to act, or to continue to act, as a McKenzie friend, and whether to grant them rights of audience. Cases where McKenzie friends have been prohibited from further involvement in proceedings include Re Baggaley, where a civil restraint order was made, and M v F, where the McKenzie friend was considered to be ‘affecting the efficient administration of justice’.

References:

Practice Guidance: McKenzie Friends (Civil and Family Courts) [2010] 2 FLR 962

Re Baggaley [2015] EWHC 1496 (Fam), [2015] All ER (D) 149 (Jun)

M v F [2017] Lexis Citation 138

The Law Society has also issued a practice note on meeting the needs of vulnerable clients that may be of assistance in cases where the capacity of a party may be in issue.

 

Litigant in person without assistance

The court should actively assist in clarifying the case that the litigant in person wishes to put and, if necessary, help them to some extent to put their case. For example:

  • advise the litigant in person to seek legal advice—especially if the possible order is very serious, as any care order is, but especially one where adoption could be the preferred outcome, and also if the court is considering (rare, in care proceedings) committal proceedings against the litigant
  • allow the litigant in person some latitude in the preparation and presentation of their case
  • allow extra time to prepare, and perhaps give access to reference books
  • ask questions of witnesses that the litigant should have asked

But the court must not go so far that it risks infringing the art 6 rights of another party.

References:

Re R (a child) (residence order: treatment of child’s wishes) [2009] EWCA Civ 445, [2010] 1 FLR 509

There remains a problem if the litigant in person wishes to cross-examine a child witness who has made accusations of sexual abuse. The statutory restrictions on this in the criminal courts have not been extended to family proceedings — in one case, the Attorney General exceptionally provided an advocate. In Q v Q the issue of lack of public funding (in a private children case where the father was a convicted sex offender) was highlighted by the President of the Family Division, Sir James Munby. The Ministry of Justice has taken a robust approach however to judicial attempts to direct funding costs to it, successfully appealing the decision in Re K and H (Children: unrepresented father: cross-examination of child) in which it was ordered that Her Majesty’s Court and Tribunal Service should fund the cost of an advocate to cross-examine a child witness in a private law case, where the (non-subject) child had alleged she had been sexually abused (see Re K and H (Children)).

References:

H v L [2006] EWHC 3099 (Fam), [2007] 2 FLR 162

Re R (a child) (residence order: treatment of child’s wishes) [2009] EWCA Civ 445, [2010] 1 FLR 509

Q v Q [2014] EWFC 31, [2014] All ER (D) 40 (Aug)

Re K and H (Children: unrepresented father: cross-examination of child) [2015] EWFC 1,[2015] All ER (D) 23 (Jan)

Re K and H (Children) [2015] EWCA Civ 543, [2015] All ER (D) 230 (May)

In Re A (a minor) (fact finding; unrepresented party), Hayden J took up the point (at para [60]), saying:

References:

Re A (a minor) (fact finding; unrepresented party) [2017] EWHC 1195 (Fam), [2017] All ER (D) 49 (Jun)

‘It is a stain on the reputation of our family justice system that a judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.’

Note however that a new FPR 2010, Pt 3A is in force from 27 November 2017 by virtue of the Family Procedure (Amendment No. 3) Rules 2017, SI 2017/1033, together with a new practice direction (PD 3AA), making special provision as to the participation of, and giving of evidence by, vulnerable persons in family proceedings. The new provisions require the court to consider whether a party’s or witness’s quality of evidence may be diminished as a result of vulnerability, and whether it is necessary to make participation directions, including provision for a party or witness to be questioned in court with the assistance of an intermediary. See also News Analysis: Amendments to the Family Procedure Rules 2010 regarding vulnerable parties.

In Re B (Family Proceedings) (Litigants in Person: Timely Service of Documents), Peter Jackson J set out said that the court should normally direct that practice direction documents (as specified in FPR 2010, PD 27A, para 6.1, supplementing FPR 2010, Pt 27) be served on a litigant in person at least three days before the final hearing, especially where the litigant in person is not fluent in English. The method of service, usually email, should be specified. If there is time, the court should consider directing that the key documents are to be served with a translation. In cases where late service on a litigant in person might cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected. The need for earlier preparation and service places obligations on advocates and those who instruct them, but is necessary to prevent intrinsic unfairness to litigants in person that may arise from late service.

References:

Re B (Family Proceedings) (Litigants in Person: Timely Service of Documents) [2016] EWHC 2365 (Fam), [2016] All ER (D) 70 (Oct)

FPR 2010, SI 2010/2955, Pt 27

FPR 2010, PD 27A, para 6.1

On an appeal by a litigant in person within care proceedings, the local authority is expected to help the court by ensuring appeal bundles are provided, including where necessary by the provision of alternative or supplementary bundles.

References:

Re R (a child) (care proceedings: welfare evaluation) [2014] EWCA Civ 597, [2014] All ER (D) 87 (May)

 

Litigant in person assisted by McKenzie friend

In Re O (children), Re W-R (a child), Re W (children) the Court of Appeal considered the circumstances in which a litigant in person may seek assistance from a McKenzie friend in relation to family proceedings held in private and said, inter alia, that:

References:

Re O (children), Re W-R (a child), Re W (children) [2005] EWCA Civ 759, [2005] 2 FLR 967

  • the concept of a Mckenzie friend has evolved and pre-Children Act 1989 (ChA 1989) judgments on the subject are not always apt
  • the purpose of allowing a litigant in person to have the assistance of a McKenzie friend is to further the interests of justice by achieving a level playing field, and there is a strong presumption in favour of allowing a litigant in person to have such assistance
  • if the judge rules adversely on such an application, they must explain their reasons for doing so carefully and fully to both the litigant-in-person and the proposed McKenzie friend
  • the sooner the issue is resolved, the better, to give continuity within the proceedings—it is good practice for the proposed McKenzie friend to be present at the time of the application, to assist in it being made and so that they fully understand the role they are to play and the confidentiality attaching to documents, and
  • it is helpful for the proposed McKenzie friend to produce a short CV/statement, declaring they have no personal interest in the case and understand their role and the rules regarding confidentiality

In Re N (a child) (McKenzie friend: rights of audience), Munby J (as he then was) addressed the circumstances in which the court may grant rights of audience to a McKenzie friend, as opposed to that person merely helping the litigant-in-person, saying that:

References:

Re N (a child) (McKenzie friend: rights of audience) [2008] EWHC 2042 (Fam), [2008] 2 FLR 1899

  • there must be good reason for such rights to be granted, in line with the general objective and principle of the Courts and Legal Services Act 1990 (now repealed in part by the Legal Services Act 2007), and the court should be very slow to allow such an application
  • there do not have to be exceptional circumstances, however, and legislation confers an unfettered discretion
  • there is a spectrum, and each case is fact-specific—at one end is the person setting themselves up as a ‘professional’ McKenzie friend, and an unqualified advocate, whether or not for reward, and only in exceptional circumstances will the court allow that—at the other end of the spectrum may be the spouse or partner of the litigant, although again circumstances may vary greatly, and
  • the overriding objective is that the courts should do justice, and there will be increasing numbers of litigants-in-person with the cuts in legal aid—in some cases, the grant of rights of audience will help the court to ensure a fair hearing, and sometimes it will be ‘essential if justice is to be done and, equally importantly, perceived by the litigant in person as having been done’.

This article was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.

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