From Dr Pelling
Why do you FNF people always make things so complicated? All that needs to be done to Rule 4.23(1) is to replace ONE WORD "representative" by "adviser" [or to be more pedantic, replace "representative of" by "representative of or adviser to"]. There is no need for any nonsense about "LIPs putting the McK F under the same duty of confidentiality..." - that duty arises automatically under the present law.
In practice Rule 4.23 is not a problem - I have never in my experience had a situation where the McK.F is allowed but he is expressly barred from seeing the documents. Such cases will be very rare.
Of course if you are stupid enough to create a problem where there wasn't one by formally asking the judge for leave then don't be surprised if leave is refused (with counsel for mother, who in most cases would not even have thought about it, opposing leave).
The more you idiots keep on about 4.23 and try to be so goody-goody and law abiding, the more you will create a problem where there was no problem. Then you will screw everything up by not even arguing the case properly for a right to see the documents, because r.4.23 is ultra vires.
When FNF was allowed to intervene in the Re G case (the second Re G, 28/7/03 CA) an opportunity was wrecked by FNF putting in inadequate submissions. Notice was very short so J.Baker and S.Stephenson (who wrote the submissions) are not entirely to blame. But of course FNF could not consult me who could have written a v.powerful submission at short notice, because as a professional McKenzie Friend I have thought long and deep about these matters for years and have had my arguments in reserve in case a problem ever arose.
In short, be ready to assert your rights with a fully reasoned case.
----- Original Message -----
From: Roger Macy <firstname.lastname@example.org
Subject: Re: [fnf-chat] MCKENZIE FRIENDS
Your points that a McKenzie friend should be a right is well made and I concede that
your rejection of a 'qualification' for McKenzies is right. But you have yourself
advocated the TRAINING of McKenzies on this forum, so I take it that you support our
efforts in this in principle ?
As for their acceptance, I find it hard to imagine that Andrew Crumpton and Ian (and others elsewhere) did not put the case for a McKenzie friend robustly.
We are still having to fight this and our members are still facing an unacceptable lottery and the rearguard action seems now to being fought through the confidentiality rule 4.23 (which confines disclosure to solicitors etc., I said 4.24 in error before).
We certainly don't want to go down the road of having to submit a form C2 for each instance of McKenzieing.
We can, of course, simply argue that there should not be any confidentiality rule, apart from not identifying minors but I don't think we have a chance of getting this through judge's committees in the DCA yet.
We should keep banging on about it and I do sometimes get letters published in the national press that highlight the damage caused by Family Court secrecy.
In the meantime, those present at the first McKenzieing seminar thought that we should submit a 'revisionist' proposal for amendment to the rule.
This said that, if a litigant prenotified the court of a McKenzie friend, that the LIP would be at liberty to put the McKenzie Friend under the same duty of confidentiality as himself unless a very good objection was raised.
An additional proposal was to have a list of nominated McKenzie Friends who would have leave to see documents without prior notification. (This is NOT a qualification.)
The paper went on to stress that such a list should not prevent anyone appearing as a McKenzie on the day, the proposal merely being an answer to the problem of prior viewing of papers.
The position, as of today, is that this paper has not gone off and Rule 4.23 is still putting McKenzies in breach.
How would you suggest the Rule is amended ?
----- Original Message -----
From: "BERNARD" <email@example.com
In open court there have never been any problems associated with having a McKenzie Friend since this was demonstrated to be a common law right.
It has recently similarly been demonstrated that to have a McKenzie in all family proceedings is a common law right (albeit that you may be required to assert it).
And now you propose to start muddying the waters with the concept of a "Qualified McKenzie"
If there are any problems with disclosing CAFCASS reports etc. these need to be tackled in the same way that Dr Pelling tackled refusal of McKenzies in family proceedings; i.e by challenging the assumption that these documents are held to be disclosable only to a solicitor or barrister. These issues will not be solved by creating a new elite - "Qualified McKenzies".
The path to their solution is through the common law.
LIPs have McKenzies for reasons other than their legal expertise; it is not up to anyone else to decide whether the LIP should have a McK or whether the McK is suitably qualified, or whether the LIP has chosen wisely.
The LIP is entitled to have the McK of his choice without gaining the approval of anyone else. And once he has got his McK the ability of the McK to help the LIP should not be fettered by any notions of whether or not the McK is "qualified".
Don't start fiddling with common law rights. They are for everybody.