The Master of the Rolls & the President of the Family Division have issued new Guidance on McKenzie Friends . The previously issued Practice Direction of 2008 has been withdrawn. The guidance spells out what McKenzie friends may and may not do, when they should and should not be allowed, that they cannot recover costs and that the court should consider whether they should be invited to attend advocates' meetings.
The following factors should not be taken to justify the court refusing to permit a litigant receiving such assistance:
(i) The case or application is simple or straightforward, or is, for instance, a directions or case management hearing;
(ii) The litigant appears capable of conducting the case without assistance;
(iii) The litigant is unrepresented through choice;
(iv) The other party is not represented;
(v) The proposed MF belongs to an organisation that promotes a particular cause;
(vi)The proceedings are confidential and the court papers contain sensitive information relating to a family’s affairs.
A litigant may be denied the assistance of a MF because its provision might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of confidentiality.
I would add to that list that the McKenzie friend may be a witness in the case or may be proposed to be involved in contact facilitation or is the new partner of one of the parents (and the other one objects for proper reasons which may include the potential witness point) or where there is a particularly hostile relationship between the McKenzie friend and the other party.
The guidance also deals with the circumstances in which it may be desirable to allow the McKenzie friend to have rights of audience which the court should be slow to grant.
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