Barrister in ‘No Duty to Child’ Shock

One of the first things we are taught in bar school is that our job is to 'promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences to himself or to any other person' (pa 303). Hand in hand with that duty goes the overriding duty to assist the court and not to mislead it either knowingly or recklessly (pa 302).

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But how does that duty to fearlessly defend the client and her interests operate in cases involving children? I have often had it suggested to me that my primary duty is to the child(ren) in a case, but in fact that is not strictly correct. So what is the position?

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Paragraph 302 and 303 of the code of conduct continue to apply and to govern what we do when representing a party (whether that be a parent, a spouse, a child, a local authority or another relative). In addition to the duties mentioned above those paragraphs also state that:

  • as between professional and lay client (solicitor and 'punter' if you like) the primary duty is to the lay client ('punter'), and
  • that in publically funded cases there is also a duty to the Legal Services Commission (which is essentially to inform the LSC if a client for reasons of merit or means is no longer entitled to the benefit of public funding. You can read those parts of the code of conduct in full here.

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Although the Children Act 1989 governs much of what the family courts do each day - in particular the principle enshrined in s1 of that act that the welfare of the child is paramount - it is important to remember that it is judges not barristers that are bound by the Children Act - our behaviour is regulated by an ethical code, it is our advice to a client that is circumscribed by the law.

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There are other pieces of guidance which apply specifically to family work: for example the guidance note: Disclosure of Unhelpful Material Disclosed to Counsel in Family Proceedings which can be found here or the guidance note on Illegally Obtained Evidence in Civil and Family Proceedings which can be found here.  The most important principle which can be drawn from the former is that there is a duty of full and frank disclosure upon the parties and their legal representatives in all matters involving children, as of course is also the case in relation to ancillary relief matters. As rightly identified in that guidance note there is a general 'practice in which all matters concerning issues in family law cases are routinely disclosed, the client being advised that there is no possibility of preventing disclosure even of matters which would seriously undermine the case'. The only exception in relation to that is where legal professional privelege applies (broadly communications between lawyer and client).

Plainly the enhanced duties of disclosure which have emerged in family law arise in the main from the need to ensure the court is in a position to properly assess and ensure the welfare of the children affected by his decision, regardless of the position adopted by the respective parties. Counsel must continue to fearlessly defend his client and set forth his position but she must do it on the basis of full and frank disclosure. The rule is so important that if a client refuses to give consent for the disclosure of relevant material counsel must withdraw and cannot continue to act, not because of any duty to the child, but because it would be a breach of the duty owed to the court.

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Of course on a practical level one is usually working towards the welfare of the children - whatever my client's instructions are they are almost always given with the genuine belief that they are in the best interests of the children. The reason we are at court in most cases is precisely because the parties differ frequently and significantly about what is and is not in the best interests of the children - there is a common purpose if not agreement about how to achieve that purpose. Even on days when it does not feel as if we are working towards the welfare of a child because the position I am being instructed to take on behalf of a client is so wrongheaded, it is my job along with my opponent to put forward the opposing viewpoints so that the judge can make a good decision.

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So both in terms of gently suggesting to a client why it is that the position she is putting forward might not be the best solution for the child (have you thought about this...do you think Billy might find it easier if such and such happened instead?), or in terms of trying to explain to a litigant in person or an opposing lawyer why the position we are putting forwards is welfare driven (no, its not because she wants to inconvenience you for the sake of it, its because a six hour car journey for a child is a bit much all in one day), we are - indirectly - promoting the welfare of the child.

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Again, in terms of advising the client of the prospects of success and trying to promote an agreed outcome and reduce conflict we are indirectly promoting the welfare of the child. When we deal with directions and case management so that a case can proceed smoothly and swiftly to a conclusion with the right evidence and without unecessary delay we are indirectly promoting the welfare of the child.

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And in terms of setting out clearly and articulately for the judge what the options are and why one may be better than another - ensuring that both parents are equally able to explain their concerns and their wishes, we are indirectly promoting the welfare of the child.

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So no, we don't directly owe a duty to the child (unless of course we represent the child). But in 'fearlessly defending' our client whilst also complying with our duty to assist the court we are part of the process that is designed to promote their welfare.

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And although the phrase 'fearlessly defend' is a peculiar, perhaps archaic and awkward phrase to find in the field of family law, that conjures up imagery of battles and conflict, what is really signifies is that assisting the court also means not being afraid to say to the Judge 'No - that is wrong'. We say it politely 'with respect' (almost always), but we say it nonetheless.

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NB: This system falls down where there is not equality of arms, so for example where a litigant in person finds it hard to articulate their position through intimidation or lack of oral ability. A judge will usually try to ensure that the balance is struck fairly by assisting a LiP, and the courts are increasingly willing to allow a McKenzie Friend to assist a LiP. It is also clear that lawyers owe a duty of fairness to a Litigant in Person, although this is not prescribed in the code of conduct it is in my view a part and parcel of the overriding duty to the court. Nonetheless, as the numbers of LiPs increase and there is more pressure on court time and significant downward pressure on counsel's fees in publicly funded cases, the likelihood of the system becoming unbalanced in individual cases increases. The system currently relies heavily upon the assistance of representatives to the court, and in the years ahead this may need to be adjusted or recalibrated.

A Friendly Pointer

Further to previous posts here  and here about McKenzie friends...

QUESTION:

I am about to embark on a journey as a McKenzie Friend to my partner, who has been involved in a long legal battle for residency/contact etc. She is now broke and cannot afford to pay for a solicitor.

Her ex is likely to object to me being there (he assaulted me in Jan 08). Would the judge automatically bar me because of his objection. My partner would like me to have Rights of Audience as she feels she would not do herself justice (conditioned fear of her ex due to prolonged violence in the marriage) - how often are Rights of Audience given to McKenzie Friends. Do you have any advice/information on applying for this.

He is very rich and can afford the best representation. I have no legal training but I am used to preparing reports and I am logical and speak well in public.

REPLY:

I am pasting below the newly amended Practice Direction (PD) relating to McKenzies which you should refer to. I can't advise you specifically on your case but I can give you some general suggestions: take 3 copies of the PD to court - one for you, one for the Judge and last for the other party's lawyer. Tell the usher when you sign in that your partner will be making an application to act as Mckenzie AND for rights of audience. Take 3 copies of a short cv tailored as per the PD. The application for a McKenzie status is unlikely to be a problem but rights of audience are rarely asked for or granted so you may need to point the Judge to the PD and to the fact that it has very recently changed. Take a copy of the authority (the case) referred to in the PD.

I assume that your partner is not eligible for legal aid? It may be worth checking if she hasn't already done so.

Thanks to 'Anon' for agreeing to my posting of this exchange. The PD follows (sorry this very recent version has not yet been published in word format on the HMCS website so this will have to do): [POSTSCRIPT - PD NOW PUBLISHED HERE]

President's Guidance: McKenzie Friends
 
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 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 MF'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
·        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.
 
 
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 Bureaux. 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.