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What is a McKenzie Friend?

One of the reasons I chose not to include the words McKenzie Friend in the name of this website is because my pre-launch research indicated that the name is not well known.

Most people I have spoken to about this work have no idea what a McKenzie Friend is, and I have even come across solicitors who have been equally in the dark.

But my research was not exhaustive, and the fact that you are reading this means that you are either curious, or you know more about this area than those I spoke to.

It is time to unveil the McKenzie Friend and understand how this role came into existence.

A McKenzie Friend is someone who assists a litigant in person (someone who is going to court without legal representation) by offering support in readiness for and during a hearing.

Who is McKenzie?

The name McKenzie comes from a 1970 divorce case (McKenzie v McKenzie*)  The husband, Mr McKenzie, who was representing himself, wanted someone to sit beside him and assist him in the courtroom, but his request was refused. 

Mr McKenzie took his case to the Court of Appeal and it was ruled that the judge in the lower court should not have refused his request. 

But the right to assistance while in court pre-dates the McKenzie case.  This right was established in 1831 (in the case of Collier v Hicks**).  The judge in this case, Lord Tenterden CJ, stated that any person, whether a professional or not, could attend court as a friend of either party and take notes, quietly make suggestions and give advice.  

What is a McKenzie Friend allowed to do?

 McKenzie Friends must abide by the Civil and Family Courts Practice Guidance.  The Guidance sets out that litigants in person can have reasonable assistance from a McKenzie Friend. 

Here are the main provisions of the guidance.

 McKenzie Friends can:

  • Provide reasonable assistance
  • Provide moral support
  • Take notes in court
  • Help with case papers
  • Quietly give advice in court on any aspect of the case

McKenzie Friends cannot:

  • Carry out litigation
  • Sign litigants’ documents
  • Address the court
  • Examine witnesses

Why are McKenzie Friends needed?

 The simple answer is cost.

Legal advice can be costly and Legal Aid for family cases has been severely restricted in recent years.  As a result, access to legal advice provided by law firms is no longer an option for those who cannot afford to pay for them.  

For many people, this means working on their own cases and attending court on their own.   

Having a McKenzie Friend by your side means there is someone in your corner who can guide you through the legal process at a time when emotions are high, taking the worry of legal jargon and legal processes away from you.

Most McKenzie Friends charge a fraction of the fees charged by law firms, with a limited number offering their services for free.  Using the services of a McKenzie Friend means that you can still get access to justice, even if you do not have a lawyer; and it means you can do so while keeping a rein on your legal costs.

Are McKenzie Friends legally qualified?

 Some are, but not all. 

 McKenzie Friends have a wide variety of backgrounds, some  have been litigants in person themselves, or have used the services of a McKenzie Friend during their own divorce or family proceedings.  Some are supporters of one or more causes, while others are solicitors who have left private practice.

 You may also find a McKenzie Friend whose background covers more than one of these areas, for example, he or she may have a legal qualification plus experience as a litigant in person in their own case. 

How to find a McKenzie Friend

There is two organisations that hold an online database of McKenzie Friends by geographical area, making it easier for you to find a McKenzie Friend near you:

The Society of Professional McKenzie Friends

This is a self-regulating professional body that provides a list of professional McKenzie Friends who have had to fulfill certain criteria before being accepted, including being registered with the Information Commissioner’s Office and being insured.

Family Law Assistance

Experienced McKenzie Friends can apply to join this organisation.  Once accepted, their profiles are included by region on a map of the UK.

Both organisations provide further information about how to choose and work with a McKenzie Friend – and most McKenzie Friends have websites providing further details about their services, fees and specialist areas.   

Copyright © Going to Court Alone

 

Case citations – for cases mentioned:

*McKenzie v McKenzie [1970] 3 WLR 472

**Collier v Hicks [1831] 2 B & Ad 663

Going to court for the first time

At some stage during your civil dispute, you may have to attend a hearing at a county court.

Here are six  areas to be aware of when you attend court for the first time. 

1) When should you attend court?

The court will write to you detailing the date, time, court and court address.

The number of times you will have to attend court will vary, depending on the complexity of your case.

When you receive your court dates, if for any reason you can not attend, let the court know as soon as possible, to reduce the amount of time you have to wait for a new court date.

2) What happens when you arrive at the court?

When you arrive at the court, you will have to go through security checks, like the ones used at airports.

The checks will involve security staff looking inside your bags and scanning you using a metal detector.  Some courts have a scanning doorway that they will ask you to walk through.

Security checks are standard practice and everyone, including your legal representative or McKenzie Friend, will be checked every time they enter the court building.

Once inside the building, go to the information or usher’s desk to let them know you have arrived and to find out where your case will be heard.

You can also check the court boards to view the hearings listings.  Look for your name on the list.

Within each court there are numbered courtrooms where a judge sits, and cases are allocated to each individual courtroom.

If your surname is Smith and you are taking A.  Another Company  Ltd to court, your case will be listed as Smith v A.  Another Company Ltd.  If it is the company that is taking you to court, the name order will be in reverse:  A.  Another Company  Ltd v Smith.

You should also find out where your courtroom is located.  It may be on the ground floor, upstairs or in a separate building.  Once you have found it, wait in the waiting area near to that courtroom.

The court usher will call out your name when it is your turn.  If you are waiting in the wrong place, you may not hear your name being called and you could miss your slot.

 3) Court hearing dates and times

It is the day of your hearing.  You are at the right county court, and you have arrived with plenty of time to spare before your hearing start time of 10am.

You are near the courtroom where your hearing will take place and you know that at least some parts of your dispute will be dealt with.

Not necessarily.

Courts are busy places and there many cases are scheduled to be heard.  Court hearings are expensive to run, and each courtroom is often used to (beyond) its maximum capacity.

Although your hearing may be listed for 10am, look more closely at the court listings for your courtroom and you may notice that as well as your hearing at 10am, there may also be one or more others booked into that same slot.

Your case may be the first of the 10am cases to be chosen but if it is not, you may have to wait until the earlier case has finished before your case can be heard.

If your hearing is later in the day, your case may not be heard because an earlier case has overrun and there is no time left that day.

If your hearing can not be heard on the day,  the court will agree a new hearing date with you and the other party.

4) Will the judge know all about your case?

I would say, assume not.

A judge will often hear one case after another, with little or no time between each one.

Given the volume of paperwork that can be generated, in even the most ‘straightforward’ civil dispute, don’t expect (or assume) that the judge has had the time to read, absorb or remember every single detail in your documentation.

Assume the judge has not read any of your documents.  And if you mention anything that the judge already knows about, he or she will let you know.

As an extra safeguard, take two extra copies of all your documents with you, as well as a copy for yourself.

Paperwork can go missing, which means the judge may not have received all the documents that have posted  or hand delivered to the court.

5) Can you go to court without a solicitor?

Yes, you can.

As the cost of legal fees remains high and sources of help (such as legal aid) evaporate, there is a growing number of people who represent themselves in court, and you can too.

Those who go to court without a legal representative, such as a solicitor or barrister are known as litigants in person (LiPs) or self-represented litigants.

Judges are becoming used to dealing with LiPs during hearings and, in my experience, if you are a LiP, judges are likely to help as much as possible by explaining what is happening and what a ruling means, if time allows.

6) What happens during and after the hearing?

When the judge is ready to hear your case, the court usher will call you by name.  You and the other party (A.  Another Company  Ltd) will follow the usher into the courtroom, through the same door.

There is no jury in a civil hearing.  Only you, the other side, the judge plus any legal representatives or McKenzie Friends will be in the courtroom.

There will be one or more long tables with a long bench to sit on.  You will sit at one end of that bench and the other party will sit at the other end of the bench.  If you have a solicitor or McKenzie Friend, they will sit next to you.

You will all face the judge who will be seated at a large desk on a raised platform at the front of the courtroom.

The judge will ask you and the other party questions and you must respond to the judge direct.

If you have a solicitor with you, the judge will tend to address your solicitor rather than you.  If you have a McKenzie Friend with you, the judge will speak to you.  In some circumstances, the judge will give your McKenzie Friend permission to speak on your behalf.

After the judge has finished asking all of his or her questions, and heard both sides, he or she may have a break (adjourn) for a time (if needed) and then return to deliver a ruling.

During a judge’s ruling (which is recorded), no-one else is allowed to speak or interrupt.

If further court appearances are required, the judge will say so and may ask both parties to agree on the date of the next hearing there and then.

After the ruling has been given, you must all leave the courtroom through the same door.

A typed version of the ruling, including details of any orders issued by the judge, is given to both parties on the day or sent by post by the court.  The dates of any further hearings or instructions will included.

Copyright © Going to Court Alone

Portrait by: Antonia Kavaš

Are there grounds for a no-blame divorce?

The day when a no-fault or no-blame divorce becomes one of the legally-accepted grounds for divorce in England and Wales could be inching a step closer.

Currently, couples seeking a divorce must do so under the grounds provided in the Matrimonial Causes Act 1973.  And while the Act was an attempt to consolidate previous modernising legislation, calls for more changes to divorce law continue to this day.

And a recent divorce case has re-ignited the fault-free divorce debate.

The case of Tini Owens

The case in question is that of Tini Owens, who in May 2018 lost her divorce battle after taking her case to the highest court in the land (The Supreme Court).

After 40 years of marriage, Tini Owens, sought a divorce from her husband under Section 1(2)(b) of the Matrimonial Causes Act 1973, on the grounds that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’.

Hugh Owens, the husband, contested the divorce.  By the time of the final hearing, Tini Owens had made 27 allegations in support of her application, including the allegation that Mr Owens prioritised his work over their home life and that he showed her no love or affection.  Her case was dismissed.

In 2017, an appeal lodged by Tini Owens at the Court of Appeal was also dismissed.

On examining the effect of dismissing the case, the Court of Appeal judge questioned whether the current law is fit for purpose.

Not fit for purpose?

The five grounds or reasons for applying for a divorce (or making a divorce petition, as it is known), under the Matrimonial Causes Act 1973, are: adultery, unreasonable behaviour, desertion, separation for more than 2 years (with the consent of the other partner) and separation for at least 5 years.

All of these grounds require proof.  And in order to provide that proof under Section 1(2)(b)  of the Act (unreasonable behaviour),  a spouse must make allegations of certain behaviours against the other.

But making allegations about behaviour can sour divorce proceedings from the start and ruin the potential for an amicable agreement in other areas linked to the divorce, such as arrangements for a couple’s children, or their joint finances.

According to the most recent figures published by the Office of National Statistics, unreasonable behaviour has remained the most common grounds for divorce among opposite-sex couples – with 36% of all husbands and 51% of all wives (who have been granted a decree absolute) citing behaviour in their divorce petitions.

And with the divorce rate currently at 42% for same-sex couples, the need for change is strong, given the number of couples affected.

The look and feel of a no-blame divorce

No-blame divorce grounds are nothing new.  They have been in force in Australia, France and almost all of the USA since the 1970s.  And in France, they are the most popular grounds for divorce.

The UK came close to enacting no-blame divorce grounds under the Family Law Act 1996, but these provisions were never brought into force and were repealed by the Children and Families Act 2014.

Resolution, the training and support organisation for collaborative lawyers in England and Wales, believes couples should be able to divorce each other without blame.

Resolution proposes a different divorce procedure involving one or both partners giving notice to the other that the marriage has broken down irretrievably.  The divorce could then proceed, and after six months the divorce would be finalised.

This approach, argues Resolution, increases the chances of a successful resolution outside of the courtroom by putting both partners on an equal footing and removing the element of blame.

Lady Hale, the most senior female judge in the country and President of The Supreme Court, also supports a blame-free approach and first called for such divorce grounds some 20 years ago.  In a recent interview in The Times, Lady Hale indicated that the divorce legislation needed to be modernised to end the requirement for one person to be at fault.

The waiting game

Under her proposed no-fault arrangement, Lady Hale recommends that divorces take longer and  that they include a one-year cooling off period during which couples can sort out their child and financial arrangements, before finalising their divorce.

It remains to be seen when and how the proposed changes may be adopted.

In the meantime,  Tini Owens must wait until 2020 before she can make a fresh divorce petition on the grounds of separation.  And by that time, she will be free to do so without the consent of her husband.

The question is, how many more couples will be denied the opportunity to end their marriages sooner rather than later –  without blame, and without acrimony?

Copyright © Going to Court Alone