Choosing friends

Like it or not, McKenzie friends are on their way to sheriff courts in Scotland following confirmation by the Sheriff Court Rules Council that rules allowing for the use of a McKenzie friend in civil proceedings will be effective from February 2011. Rules have already been in place in the Court of Session since June this year.

The indications are that the sheriff court rules will differ insofar as they are intended to be less formal, with no certification as regards the suitability of the individual whom the party litigant wishes to assist in the conduct of the proceedings.

Still under discussion is the question of whether expenses should be recoverable by a litigant who has the support of a McKenzie friend. Under the Court of Session rules, this possibility has been excluded.

The Gill review recommended that provision be formally made to allow McKenzie friends to sit in court assisting party litigants. The decision to pre-empt the introduction of the report, first by the Lord President and now by the rules council, has, however, come about as a result of a public petition by Stewart Mackenzie to the Scottish Parliament. His successful campaign led to him being awarded the Which? magazine consumer champion of the year award.

Point of contact

While there have been precedents for lay assistants sitting alongside and advising party litigants, the formal adoption of rules permitting McKenzie friends does mark a watershed moment and the anticipation, from the experience in England, is that it will be family proceedings, and particularly contact cases, that will see their greatest use.

In England, organisations such as Family Court Support and Families Need Fathers offer McKenzie friends services. The rules in Scotland, at least so far, forbid payment for the services of a McKenzie friend, a move which might deter those other than the truly altruistic from offering the service.

In his recent speech to Families Need Fathers, Lord Justice Wall addressed the issue of the operation of McKenzie friends in the English courts and suggested that “with the increasing dearth of legal aid, the courts are likely to be faced with an increasing use of litigants in person and the increasing use of McKenzie friends”. His speech predated the recent announcement that legal aid would no longer be available in England for divorce.

Lord Justice Wall went on to summarise the modern rule in relation to McKenzie friends, as determined by Lord Woolf, as follows:

(1) In relation to proceedings in public, a litigant in person should be allowed to have the assistance of a McKenzie friend unless the judge is satisfied that fairness and interests of justice do not require the litigant to have such assistance.

(2) The position is the same where the proceedings are in chambers, unless the proceedings are in private.

(3) Where the proceedings are in private, the nature of the proceedings that makes it appropriate for them to be heard in private may make it undesirable in the interests of justice for a McKenzie friend to assist.

(4) A judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie friend.

(5) The assistance of a McKenzie friend is available for the benefit of a litigant in person and whether a McKenzie friend is paid or unpaid for his services, he has no right to provide these services: the court is solely concerned with the interests of the litigant in person.

There is formal guidance south of the border as to circumstances where a McKenzie friend may be allowed to address the court, and Lord Justice Wall indicated that in family proceedings, where the litigant is highly emotional or simply not capable of expressing him or herself clearly, he has allowed the McKenzie friend to address the court. He indicated that he would, however, take a great deal of persuading to allow a McKenzie friend to conduct litigation.

Personal matters

From a perspective of the sort of practice that will evolve in Scottish courts, the view that will be taken by judges in relation to permitting a McKenzie friend to assist a party litigant in a private child welfare hearing is likely to be significant in determining the extent to which they will become a part of family proceedings.

The extent to which the court can be expected to monitor whether a McKenzie friend is paid must be open to question.

Penny Booth, a researcher in child law at the University of Liverpool and a columnist with Family Law Newswatch, explained that in England a person can take a “friend” to help the individual in court to take notes and remind them of issues or questions.

“This person is a ‘supporter’ in theory and is not there to add to problems but to help – remember that where a person might use a McKenzie friend the court is obliged to assist a litigant in person in any case (and often bend over backwards to do so), so the friend is meant to help the litigant rather than be a legal adviser, or act as one.

“They are normally used where a person has no money or has failed to retain a legal adviser for reasons of lack of money or otherwise, and their use in family matters could lead to further problems because the issues are personal in a way in which, say, litigation about a contract is not, and their involvement can add to or detract from (depending on your viewpoint) the emotions of the situation.”

Role of the adviser

Liz Welsh, immediate past chair of the Family Law Association in Scotland, expressed concern about the use of McKenzie friends in contact cases. “Most family lawyers are all too aware of the failings of our present court system when it comes to cases involving child issues. The system is adversarial in nature, overly complex in procedure, takes too long and is too expensive. The question is, how would increased use of McKenzie friends improve the situation?

“We do the best we can within that system to resolve cases in a way that protects the interests of the children involved. That can be a very delicate exercise where a client arrives full of anger and bitterness and can’t see clearly the effect on children of letting those feelings into the process.

“Good family lawyers will try to find a way for the client to have insight into their actions and often we are able to encourage a more positive approach to their ex-spouse or partner having an involvement in their child’s life. That takes time and skill.

“Many of us benefit from training in mediation skills and also on how children are affected by such disputes. That training is invaluable in informing how we approach clients. I like to think that, more often than not, we obtain good results which leave clients and their children happier.”

Welsh is concerned that the approach of the “friend” will not be advising but simply presenting the parent’s position to the court, and therefore they will not add anything to the process.

“I can understand how difficult it can be to represent yourself in court – it is an intimidating forum. However, a child welfare hearing is relatively user-friendly. There is no audience, many sheriffs are not wigged and gowned, and the whole point of the hearing is to speak direct to the parties to find out what their position is.

Speaking up, she adds, is not really the issue – most clients in these hearings will do that very happily. “It is what they say that is important and that is where clients who find themselves in such a hearing will benefit from the advice of a good family lawyer. They need to be told what are relevant issues, and about their legal obligations in terms of the 1995 Act.

“Too many well-meaning friends and family already chip in with ‘He’ll never see his child again’ type thoughts and a lot of work is then necessary to get across that nowadays, it takes a very great deal for the court to refuse contact, and only relevant concerns should be raised.

Welsh maintains that it is not enough for a well-meaning McKenzie friend simply to articulate views. “If a case comes to court, it is because legal rights have to be asserted or protected. Therefore parties should have the benefit of qualified legal representation. I think clients, children and courts will be worse off if that ceases to be the case.”

The experience in England seems to have been that little has been done to curtail “professional” McKenzie friends, who charge for their services, but are of course not subject to the same regulations and have no professional indemnity. How the Scottish courts balance the right of a party litigant to have assistance without opening the door to quasi-legal advisers will be interesting to observe in the months and years ahead.

Born in divorce

The term “McKenzie friend” originated from a 1970 defended divorce case in England. The judge had refused to permit Mr McKenzie to be accompanied by a friend who wished to sit beside him in court. The Court of Appeal held the judge should not have refused the right of the litigant to be accompanied by a friend.

In fact, the friend was a young Australian barrister, Ian Hanger. Now Ian Hanger QC, he contributed to the public petition to the Scottish Parliament by writing to the clerk of the Petitions Committee urging the Parliament to permit the appearance of a McKenzie friend.

He wrote that the Australian experience has been that it has worked successfully, and the courts are “greatly untroubled by unrepresented litigants”. He noted that for McKenzie friends to charge for their services would be breaching the Legal Services Act.

“I cannot see that the floodgates would be opened by permitting, in appropriate cases, the presence of a McKenzie friend to help the unrepresented litigant. In some cases you might get a brilliant law student who will provide enormous assistance to the court.”