The Role and Importance of a McKenzie Friend in Family Court Hearings

Whether a divorce or separation, two issues parents often find it hard to agree on are the time children shall spend with each parent post divorce and how to financially divide their marital assets. In these situations the role and importance of a McKenzie Friend in Family Court Hearings is significant. Often the parents will have considered many avenues of support including mediation to reach agreement. This is where Graham Fletcher McKenzie Friend can offer otherwise hard to come by skills and experience of navigating the family court process. 

To deepen understanding of the potential processes being navigated – Civil Family Courts deal with these types of civil disputes in separate applications, where court orders called “child arrangement orders” or “ancillary relief” are applied for. In high conflict cases, additional court applications called “non-molestation orders” or “occupation orders” may also be happening at the same time. Each application is seen by the courts as having separate criteria and considerations. A lay person Mother or Father involved in such family court civil disputes in England and Wales has an option to consider presenting their own case as a litigant in person, rather than have a family lawyer represent their views to a judge. As a litigant in person it is important to understand how lawyers will seek to strategically connect the various different types of proceedings so that you can develop your own family court strategy.

An additional option open to the litigant in person is to enlist the help of a Mckenzie Friend to assist them in presenting their own case in civil court hearings. Family courts in England and Wales define the role of a McKenzie Friend as helping prepare a litigant in person for the court hearing, to attend the court hearing and quietly give advice during the hearing and to take written notes of what happens for the litigant in person in their private civil court hearing.

It's increasingly common for a Mother or Father to choose to present their own case as a litigant in person as they find the fees of lawyers prohibitive or have already amassed high legal bills with no progress towards resolution. A litigant in person may have a viewpoint based on their lived experience of lawyers that their use of legalese language deliberately obscures and seeks to extend disputes. They may feel that this approach does not sit well with their finances, morals or ethics .They may intuitively feel that with some additional support prior to the court hearing and on the day itself that they could confidently express their aims and objectives and engage in attempts to negotiate a resolution.

Civil Family Court hearings have a standard process of asking family court workers from Cafcass (Child and Family Court Advisor Service) to do a social worker risk assessment called a “Safeguarding Letter” or a “section 7”. This involves a short telephone interview where quite a lot is expected of you as a parent. If your ex-partner is making allegations about you to justify their actions of denying or restricting contact the family court advisor will question you about your past relationship and want to hear your initial responses to the allegations. They will also ask you if you have issues or concerns with their past or current conduct or parenting . This is a key moment for a litigant in person to consider how they seek to strategically approach their case. If they recall negative behaviour towards them in the relationship they will need to evaluate how or if they seek to name their experience of the other parents behaviour. This is a tricky moment of judgement for a litigant in person to make, as much of how the case may proceed will rest on this initial assessment of the family court advisor.

Graham Fletcher worked for many years with children and families prior to working as a McKenzie Friend, he is familiar with how social workers assess risk and provides coaching sessions to talk through the issues in your case. With this kind of support you can increase the chances of securing a Cafcass report with positive child arrangements.

Another challenge of being a litigant in person is your ex-partner may engage the services of a family lawyer such as a solicitor or barrister. Many lay people with experience of lawyers will observe that they often speak down to litigants in person, using many different types of verbal or written strategies to try to undermine a litigant in person from achieving their aims in or outside of the court room.

Having a McKenzie Friend present to support you in out of court negotiations can help you see through the legal language and step into a more empowered mode where you engage confidently in negotiations outside of the court room. This is an important factor to be aware of when attending civil court hearings as a litigant in person

In England and Wales, when a litigant in person enlists the support of a McKenzie Friend then they can access emotional and strategic support to prepare for their court hearing . Prior to the court hearing the litigant in person can share the documentation that has been submitted to the court such as application forms, evidence, social worker reports with the intention of getting a perspective on how family courts may deal with the specific factors present in the case. Doing so can enable the McKenzie Friend to discuss the options open to the parent and if needed correct mis-interpretations that may have occurred due to the emotional nature of the content.

It is common practice for both parties in a case to submit and exchange a position statement prior to the hearing .This is a short word document that outlines a summary of the situation as concisely as possible, with two intentions. Firstly the document should update the court on the issues in the case, propose ways forward and respond to Cafcass recommendations. The document also serves as a negotiation tool that offers the other parent ways forward to resolve the dispute. It is an opportunity to outline a clear, child centred way forward. Graham Fletcher shares a template position statement with clients so they can get a general idea of how to outline their case. He then reviews their draft statement and gives them insightful feedback on how they can improve it.

On the day of the court hearing itself their McKenzie friend can provide emotional support to negotiate with Cafcass staff or lawyers outside the court room. This stage can often narrow down the issues of dispute and reduce the time spent in the court room discussing the remaining issues. If agreement or partial agreement can be reached outside court then this can be outlined to the court when the hearing starts. During the, the McKenzie Friend can quietly give advice or respond to questions on process, take written notes of what was ordered by the judge or magistrates and gently prompt the litigant to make the key points they want to make to the court. The role of the McKenzie Friend is restricted and they do not have the permission of the court to address the court and does not speak on behalf the person they are supporting. The litigant in person takes full responsibility for conducting their own litigation. In some cases, a court will give the McKenzie Friend “rights of audience” or ask the McKenzie Friend to assist if they have been present at a number of hearings

The primary role of the McKenzie Friend is to assist the litigant in person to understand the focus and process of the court hearing, through helping them understand the implications of agreeing or not agreeing (“consenting” or “contesting”) to proposed solutions and to propose their own solutions to their dispute. This helps achieve more effective resolution.

Given that the crucial detail is that the litigant in person conducts their own litigation , how can the McKenzie Friend help and how important can this support be?

An experienced McKenzie Friend, such as Graham Fletcher, can provide feedback and advice to the litigant in person on how to improve how they come across and negotiate their case. In civil family courts it is common for disputes to take a number of hearings to reach agreement. In some cases a court may need to order both parents to do certain things or follow certain arrangements. A key skill is being able to think on your feet and be responsive to the fast pace that civil court hearings flow at. If you do not pay attention or understand the legalese language used then you may not know when or how respond and a key moment of important detail may pass to your disadvantage.

There are risks in being a litigant in person such as strong emotions getting in the way of understanding court procedures. Some litigants in person “freeze” when it comes to their moment to speak to judge or magistrates. A McKenzie Friend can support them to regain composure and remind them of their aims and objectives and help them articulate them as effectively as possible.

Civil family court hearings have two key dimensions: 1. The written word and 2. The verbal word. Communicating clearly on the important issues in interviews with Cafcass social workers, at court hearings and in your paperwork are key aspects to be aware of when seeking to achieve positive court orders.

Most lay people do not like the idea of being at a court hearing as it triggers thoughts that they are in trouble with the law. In reality this is not the case as it is not a criminal court but it often brings up anxieties or fears that are very real for the parent. An empathic McKenzie Friend can help you keep your emotions under control so that you can present your best self. Some parents will be so nervous they will feel unable to speak and employ a lawyer to speak on their behalf. Whilst this reduces the nerves it has a high cost attached.

Given these emotional challenges the importance of a neutral, experienced McKenzie friend is significant when mentally and emotionally preparing for the experience of a family court hearing. A McKenzie Friend can to help a litigant in person to understand the legalese language and common persuasion techniques that lawyers often use in civil court disputes and to focus on aligning with important court criteria.

As an experienced McKenzie Friend, with ten years of McKenzie Friend experience, Graham Fletcher knows there can be many different aspects in each individual case which can influence the court’s decision.

Being in dispute with an ex-partner can have a high emotional charge and tug on your emotional heart strings. Especially when the children you love dearly are being prevented from spending consistent, quality time with you. For some parents, divorce or separation can turn sour, with their ex-partner directing a lot of blame and negativity in their direction. If this is the case for you then you have the tricky situation of trying to assess how to improve things in the short and long term. You may feel worried you may be questioned intensely by Cafcass. You may have concerns there may be gender bias or a rushed professional assessment. You can discuss these concerns with Graham Fletcher as he is a McKenzie Friend with over a decade of experience of helping divorcing parents navigate through the complexities of family courts; he gained invaluable experience through securing a 50/50 shared residence child arrangements order in his own divorce, which you can draw on.

Graham Fletcher has a high success rate in improving situations where a father’s contact with his children is denied or restricted by the other parent. Most lay people feel confused or unclear on how to achieve the quickest or most effective positive outcomes in situations such as these and often cases have complexities to them to consider . This confusion is often in part due to the “legalese” language that lawyers speak in, which many lay people experience as confusing and abstract and which leans towards extending what often could be a far simpler negotiation process.

Common ways in which a litigant in person’s case may go wrong without a McKenzie Friend to support them are:

• Lack of awareness of how to speak about meeting your children's needs to a social worker

• Not communicating with emotional intelligence and insight about your past and current relationship with your ex-partner

• Mis-interpretation of social worker reports

• A lack of confidence in communicating as an articulate, child centred parent

• An unclear negotiation strategy when confronted with lawyers focussed on extending disputes

• Incorrect focus on a “reactionary” battle mentality

• Being negatively influenced by social media or the experiences of parents who feel family courts made negative decisions for other families

As court hearings often involve negotiations outside the court room before the hearing starts, the McKenzie Friend can help the litigant in person in their negotiations with the family lawyer that may be representing their ex-partner or the Cafcass staff. Lay people can often find the approach or personal manner of family lawyers outside of the court room environment intimidating or pressurising them to agree to arrangements they are not aligned with. It is often of great benefit to have a calm, experienced McKenzie Friend alongside you to help you evaluate the choices you want to make for your family so that you do not regret your decisions afterwards.

Family court orders often contain specific start and end times for the time the children spend with each parent. Often these order break down in to sub categories or micro details such as:

• Where and by whom the children are handed over for contact

• What arrangements happen in school terms, school holidays and important dates such as birthdays and mothers and fathers days

• Where the children go to school

• When indirect contact such as telephone or video calls happen

In divorce financial disputes over such delicate issues such as selling the family home upon divorcing, courts can order the sale of homes and specify percentages to be received by the Mother and Father. Often these types of cases are high in emotional charge, fuelling the continued energy of dispute and acrimony. The importance of a McKenzie Friend in these cases is they can help keep the litigant in person focussed on important matters of negotiation and offer strategies to move forward. The McKenzie Friend can help ensure emotions do not get in the way of progress in these highly charged moments. Getting lost in the minutiae of petty financial disputes often does not influence the final outcome.

Graham Fletcher has a decade of McKenzie Friend experience and an eye for detail when it comes to assisting a litigant in person to define their aims and objectives. As family court hearings can often jump quickly through many different dimensions and it is important to prepare aims in advance so that you can communicate them effectively and ensure lawyers and the judge or magistrates respond to them. The nuances of what was said can often be critical when a court order is drafted by the lawyer for the other side. The McKenzie Friend notes of the court hearing are important if the opposing lawyer is asked by the court to draft up a order for the court. This should be shared with you prior to being sent to the court for approval. You can share the draft order with your McKenzie Friend who may notice that the lawyer's draft order (prepared for the judge as a servant of the court) attempts to insert wording that was not reflective or mentioned by the judge or magistrates. In some cases this may be a key point to be aware of so that you can dispute and negotiate the wording. A McKenzie Friend can help you object to the wording of a draft order and offer a correct written summary on disputed points so that the order rubber stamped by the judge or magistrates is accurate.