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Mackenzie friends advice from j4 f

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ADVICE FOR Mackenzie Friends

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Mackenzie friends advice from j4 f

  1. 1. Mackenzie Friends My experience and findings as a MKF Introduction 1. Current Legislation. 2. Applications for MKF’s 3. Audience of the court. 4. You and the Client. 5. Allowing Children into court hearings. 6. Appointment of Expert witnesses. 7. Appeals, Courts of Europe and Judicial Reviews. 8. Useful Judgements and Orders and useful Links. 9. miscellaneous Best Practice. In recent times there has been some stiff opposition regarding the acceptance of MKF’s into court hearings surrounding care proceedings, this has been quite a hurdle to over come as most of you will know and have had the experience of refusal to become an MKF for the client. It is vital for anyone who wants to assist clients in actual court hearings should be fully aware of the current Practice Directions and are competent enough to carry out their duties to the best of their ability. We need to show that we are more than capable in a professional capacity to conduct the case in the benefit of justice. The most recent practice directions from Sir Mark potter were issued on the 14th October 2008. The directions are as follows:- 1. Current Legislation Previous Directions made from the 14th April now withdrawn http://www.judiciary.gov.uk/docs/pfd_guidance_mckenzie_friends_oct_2008.pdf Date 14th October 2008 In the light of the recent decision of Munby J in the case of Re N (A child) (McKenzie Friend: Rights of Audience)[2008]EWHC 2042(Fam), the President’s Guidance of 14th April 2008
  2. 2. requires amendment to the penultimate paragraph headed “Rights of Audience”. The Guidance of 14th April is therefore now withdrawn and reads as follows in its reissued form. In the light of the growth of litigants in person in all levels of family court, the President issues this guidance, which supersedes that of 13th May 2005. [2005] Fam Law 405, and is to be regarded as a reminder that the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing. • A litigant who is not legally represented has the right to have reasonable assistance from a layperson, sometimes called a McKenzie Friend (“MF”). This is the case even where the proceedings relate to a child and are being heard in private. • A litigant in person wishing to have the help of a MF should be allowed such help unless the judge is satisfied that fairness and the interests of justice do not so require. The presumption in favour of permitting a MF is a strong one. • A litigant in person intending to make a request for the assistance of a MF should be encouraged to make the application as soon as possible indicating who the MF will be. • It will be most helpful to the litigant in person and to the court if the particular MF is in a position to advise the litigant in person throughout the proceedings. • A favourable decision by the court, allowing the assistance of a MF, should be regarded as final and not as something which another party can ask the court to revisit later, save on the ground of misconduct by the MF or on the ground that the MKF’s continuing presence will impede the efficient administration of justice. • When considering any request for the assistance of a MF, the Human Rights Act 1998 Sch 1 Part 1 Article 6 is engaged; the court should consider the matter judicially, allowing the litigant reasonable opportunity to develop the argument in favour of the request. • The litigant in person should not be required to justify his desire to have a MF; in the event of objection, it is for the objecting party to rebut the presumption in favour of allowing the MF to attend. • Factors which should not outweigh the presumption in favour of allowing the assistance of a MF include o the fact that proceedings are confidential and that the court papers contain sensitive information relating to the family’s affairs o the fact that the litigant in person appears to be capable of conducting the case without the assistance of a MF o the fact that the litigant in person is unrepresented through choice o the fact that the objecting party is not represented o the fact that the hearing is a directions hearing or case management hearing o the fact that a proposed MF belongs to an organisation that promotes a particular cause
  3. 3. • The proposed MF should not be excluded from the courtroom or chambers while the application for assistance is made, and the MF should ordinarily be allowed to assist the litigant in person to make the application. • The proposed MF should produce a short curriculum vitae or other statement setting out relevant experience and confirming that he/she has no interest in the case and understands the role of a MF and the duty of confidentiality. • If a court decides in the exercise of its discretion to refuse to allow a MF to assist the litigant in person, the reasons for the decision should be explained carefully and fully to both the litigant in person and the would-be MF. • The litigant may appeal that refusal, but the MF has no standing to do so. • The court may refuse to allow a MF to act or continue to act in that capacity where the judge forms the view that the assistance the MF has given, or may give, impedes the efficient administration of justice. However, the court should also consider whether a firm and unequivocal warning to the litigant and/or MF might suffice in the first instance. • Where permission has been given for a litigant in person to receive assistance from a MF in care proceedings, the court should consider the attendance of the MF at any Advocates’ Meetings directed by the court, and, with regard to cases commenced after 1.4.08, consider directions in accordance with paragraph 13.2 of the Practice Direction. Guide to Case Management in Public Law Proceedings. • The litigant in person is permitted to communicate any information, including filed evidence, relating to the proceedings to the MF for the purpose of obtaining advice or assistance in relation to the proceedings. • Legal representatives should ensure that documents are served on the litigant in person in good time to seek assistance regarding their content from the MF in advance of any hearing or advocates’ meeting. What a McKenzie Friend May Do • Provide moral support for the litigant • Take notes • Help with case papers • Quietly give advice on: o points of law or procedure; o issues that the litigant may wish to raise in court; o questions the litigant may wish to ask witnesses. What a McKenzie Friend May Not Do • A MF has no right to act on behalf of a litigant in person. It is the right of the litigant who wishes to do so to have the assistance of a MF. • A MF is not entitled to address the court, nor examine any witnesses. A MF who does so becomes an advocate and requires the grant of a right of audience. • A MF may not act as the agent of the litigant in relation to the proceedings nor manage the litigant’s case outside court, for example, by signing court documents.
  4. 4. Rights of audience and rights to conduct litigation • Sections 27 and 28 of the Courts and Legal Services Act 1990 (the Act) respectively govern rights of audience and the right to conduct litigation. They provide the court with a discretionary power to grant unqualified persons, including MFs, such rights in relation to particular proceedings. • While the court should be slow to grant any application under s.27 or s.28 of the Act from a MF, it should be prepared to do so for good reason bearing in mind the general objective set out in section 17(1) and the general principle set out in section 17(3) of the Act and all the circumstances of the case. Such circumstances are likely to vary greatly: see paragraphs 40-42 of the judgment of Munby J. in Re N (A child) (McKenzie Friend: Rights of Audience)[2008]EWHC 2042(Fam). • If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an application must be made at the start of the hearing. Personal Support Unit & Citizens’ Advice Bureau • Litigants in person should also be aware of the services provided by local Personal Support Units and Citizens’ Advice Bureau. The PSU at the Royal Courts of Justice in London can be contacted on 020 7947 7701, by email at cbps@bello.co.uk or at the enquiry desk. The CAB at the Royal Courts of Justice in London can be contacted on 020 7947 6564 or at the enquiry desk. It would benefit all MKF’s to introduce themselves to the allocated judge on the case as soon as it is possible prior to the hearing, in some cases this is not possible i.e. emergency requests for an MKF or an emergency hearing. It is not required for you to inform the other parties of your intentions to become an MKF for the client however it will make best practice to do so. I find that the best way to introduce yourself is to either fax, email, or hand deliver a letter along with an application for an MKF to the NAMED Judge also include a copy of the presidents directions regarding MKF’s. Following this practice will eliminate any objections from the other parties, and also put you in a good footing with the Judge if he knows more about you, on a personal note it is interesting to see the blank expressions on the other parties when the Judge says he knows enough about you already, this will also allow the Judge to hopefully refuse any objections the other parties might raise.
  5. 5. 2. Applications to become an MKF Applications should show your client’s requests for an MKF along with a brief background about yourself and any experience that you have had, include any previous cases that you might have attended. 3. Rights of Audience As in the Presidents Directions it is possible for an MKF to address the court and conduct litigation, this must be requested by means of an application in order to do this, however it has been know and speaking from experience Judges will usually ask you to speak on behalf of the client if the Client is finding it difficult when addressing the court, if you can see your client is in some discomfort and distress, request to the judge that you explain to the court what you client is attempting to say, Confidence is a must in order to address the courts. 4. You and the Client This is the most critical time to ascertain and collect all the relevant details and propose the best way forward, knowing what information to ask from the client will in turn make for an easier case. (Refer to new info forms from Emily). Also it must be addressed from the out set just how much involvement and assistance you will provide to your client, in many cases I have found that clients tend to take the fact that we are helping them for granted. If the client is not willing to put in most of the leg work this will undoubtedly cause problems down the line. Set out the boundaries first to avoid any further complications. Being an MKF you will be the only person the client can speak to regarding their case, you need to be aware that if any issues arise within the case the client will want to contact you. 5. Allowing Children into court. This subject could be quite a difficult decision to make; fundamentally it should be up to the Guarding or the children’s solicitor to ensure the wishes of the child are heard in court. It has become apparent now that children of the client do indeed want to come into court and have their say, in some instances it has been beneficial for the client but undoubtedly it has become a hindrance. This would be a point in which would need addressing from the outset when you start to assist the client. If you feel that the children would benefit the case I see no reason why the child/ren should be heard. Speaking from experience again one practical bit of info can be found at point 10.
  6. 6. 6. Appointment of Experts. This will be the make or break point to any case, fundamentally the expert should be INDEPENDENT however it has become common knowledge now that most are not. There are strict guidelines that must be followed, most cases this does not happen though. http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part35.htm I always take a copy of these for reference to the court hearing. There quite straight forward, however it has been know that some experts are appointed on whim and a prayer. PRACTICE DIRECTION – EXPERTS AND ASSESSORS This Practice Direction supplements CPR Part 35 Part 35 is intended to limit the use of oral expert evidence to that which is reasonably required. In addition, where possible, matters requiring expert evidence should be dealt with by a single expert. Permission of the court is always required either to call an expert or to put an expert’s report in evidence. There is annexed to this Practice Direction a protocol for the instruction of experts to give evidence in civil claims. Experts and those instructing them are expected to have regard to the guidance contained in the protocol. Expert Evidence – General Requirements 1.1 It is the duty of an expert to help the court on matters within his own expertise: rule 35.3(1). This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom he is paid: rule 35.3(2). 1.2 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation. 1.3 An expert should assist the court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate. 1.4 An expert should consider all material facts, including those which might detract from his opinion. 1.5 An expert should make it clear: (a) when a question or issue falls outside his expertise; and (b) when he is not able to reach a definite opinion, for example because he has insufficient information. 1.6 If, after producing a report, an expert changes his view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court. Form and Content of Expert's Reports
  7. 7. 2.1 An expert's report should be addressed to the court and not to the party from whom the expert has received his instructions. 2.2 An expert's report must: (1) give details of the expert's qualifications; (2) give details of any literature or other material which the expert has relied on in making the report; (3) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based; (4) make clear which of the facts stated in the report are within the expert's own knowledge; (5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision; (6) Where there is a range of opinion on the matters dealt with in the report – (a) Summarise the range of opinion, and (b) Give reasons for his own opinion; (7) contain a summary of the conclusions reached; (8) If the expert is not able to give his opinion without qualification, state the qualification; and (9) Contain a statement that the expert understands his duty to the court, and has complied and will continue to comply with that duty. 2.3 An expert's report must be verified by a statement of truth as well as containing the statements required in paragraph 2.2(8) and (9) above. 2.4 The form of the statement of truth is as follows: I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion. 2.5 Attention is drawn to rule 32.14 which set out the consequences of verifying a document containing a false statement without an honest belief in its truth. (For information about statements of truth see Part 22 and the practice direction which supplements it.) Information 3.0. Under Rule 35.9 the court may direct a party with access to information which is not reasonably available to another party to serve on that other party a document which records the information. The document served must include sufficient details of all the facts, tests, experiments and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper interpretation of the information and an assessment of its significance. Instructions 4.0 The instructions referred to in paragraph 2.2(3) will not be protected by privilege (see rule 35.10(4)). But cross-examination of the expert on the contents of his instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents to
  8. 8. it). Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice to do so. Questions to Experts 5.1 Questions asked for the purpose of clarifying the expert’s report (see rule 35.6) should be put, in writing, to the expert not later than 28 days after receipt of the expert’s report (see paragraphs 1.2 to 1.5 above as to verification). 5.2 Where a party sends a written question or questions direct to an expert, a copy of the questions should, at the same time, be sent to the other party or parties. 5.3 The party or parties instructing the expert must pay any fees charged by that expert for answering questions put under rule 35.6. This does not affect any decision of the court as to the party who is ultimately to bear the expert’s costs. Single Expert 6. Where the court has directed that the evidence on a particular issue is to be given by one expert only (rule 35.7) but there are a number of disciplines relevant to that issue, a leading expert in the dominant discipline should be identified as the single expert. He should prepare the general part of the report and be responsible for annexing or incorporating the contents of any reports from experts in other disciplines. Orders 6A Where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert instructed by him. In the case of a jointly instructed expert, the claimant must serve the order. Assessors 7.1 An assessor may be appointed to assist the court under rule 35.15. Not less than 21 days before making any such appointment, the court will notify each party in writing of the name of the proposed assessor, of the matter in respect of which the assistance of the assessor will be sought and of the qualifications of the assessor to give that assistance. 7.2 Where any person has been proposed for appointment as an assessor, objection to him, either personally or in respect of his qualification, may be taken by any party. 7.3 Any such objection must be made in writing and filed with the court within 7 days of receipt of the notification referred to in paragraph 6.1 and will be taken into account by the court in deciding whether or not to make the appointment (section 63(5) of the County Courts Act 1984). 7.4 Copies of any report prepared by the assessor will be sent to each of the parties but the assessor will not give oral evidence or be open to cross-examination or questioning.
  9. 9. 8. Appeals, Judicial Reviews and Courts of Europe Don’t be put off by the fact that most solicitors will not appeal any decision of a court, if you feel that the courts were wrong then that’s where you start for the appeal. I always use the notion of Appeal everything. 9. Useful Judgements and Orders It will be beneficial for MKF’s to use the current up to date Judgements made within Family Law. W (Children) [2009] EWCA Civ 59 Judgments (11/02/2009) Application for permission to appeal, out of time, adoption orders made on the basis of medical evidence later found to be flawed. Application dismissed. The appointment of a definitive expert would have dramatically changed the case completely. N (A Child) [2008] EWHC 2042 (Fam) Judgment concerning rights of audience for McKenzie Friends in private children law proceedings. C (A Child) [2009] EWCA Civ 72 Judgments (20/02/2009) Appeal by guardian against decision to place a child with his paternal grandmother rather than for adoption. Appeal dismissed. R (G) v Nottingham City Council [2008] EWHC 400 (Admin) Reasons given for orders in judicial review proceedings brought by the applicant in the light of the removal of her baby at birth. Damages were awarded for infringement of the applicant's article 8 rights and leave to apply to extend claim to common law damages. S (by the Official Solicitor) V Rochdale MBC & Anor [2008] EWHC 3283 (Fam) Judgments (19/01/2009) Judgment arising from proceedings brought by the Official Solicitor alleging serious breaches of duty and the Human Rights Act by the local authority and the Independent Reporting Officer in their treatment of a vulnerable child. S (A Child) [2008] EWCA Civ 1333 Judgments (14/12/2008) Appeal against refusal to allow a mother’s application for leave to revoke a placement order. Appeal allowed. B (Children) [2008] EWCA Civ 835 Application by parents for permission to appeal, with appeal to follow, care and placement orders. Appeal allowed. The case is of importance because it cited by Wall LJ as a second case where “this court has had to address the question of misconduct by a local authority acting as an adoption agency in proceedings relating to placement orders under the Adoption and Children Act 2002” Many recent and past case judgements can be found here:-
  10. 10. http://www.bailii.org Also I find that weekly updates from family law week (you have to register though) are very useful too. www.familylawweek.co.uk To find out current legislation and court procedures I prefer to use the M.O.J site http://www.justice.gov.uk

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