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McKenzie friends and ‘communication’ in Northern Ireland family courts

by McKenzie on January 27, 2010

in Comparative Family Law,England and Wales Family Law,McKenzie Friend Comment,McKenzie Friend News,Northern Ireland Family Law

Just thought I would share the following letter with our readers that was sent to both Lady Silvia Hermon MP and Nigel Dodds MP seeking clarification on the law on Northern Ireland in relation to ‘communications’ of documents and other information on Children Order and Matrimonial Causes Order cases.

From: John Junk [mailto:belfast@familycourtsupport.co.uk]
Sent: 22 January 2010 14:59
To: Lady Sylvia Hermon MP for North Down
Cc: ‘Nigel Dodds’
Subject: Family Court ‘communications’ Northern Ireland

Dear Lady Sylvia

Thank you for seeing both myself and your constituent at your Bangor constituency office on Friday 15th January 2010.

You mentioned that you would consider seeking clarification on a number of matters raised during that meeting by way of Parliamentary questions. I suggested that a more expedited way to deal with the matter would be to write to the Head of the Family Division in Northern Ireland Mr Justice Weir, and to copy Sir Declan Morgan, the Lord Chief Justice in to the correspondence as an information addressee. Regardless of which method you chose to staff this matter, I thought it might be helpful for you if I were to formalise the issues I raised with you around ‘communication’ of documents under the Children (NI) Order 1995 and the Matrimonial Causes (Northern Ireland) Order 1978.

Firstly I made the point that I was unsure whether a Member of Parliament in Northern Ireland (and their staff?) required leave to see any documents from either a current or historical Children Order or Matrimonial Causes case. I believe that both yourself and your staff would be aided in your work if this matter was clarified and communicated to you by either the Northern Ireland Court Service or from the senior judiciary. A similar issue arose today when I was called to the office of Nigel Dodds MP to speak to a constituent of his who had attended at his office with a live Children Order matter, currently being heard by District Judge Alcorn at Antrim. I advised Mr Dodds’ office and the constituent that as I had not been granted leave to see the papers I felt unable to assist, and cautioned them on what I believed the law to be on communication. I have coped Mr Dodds’ office into this email.

Secondly, I pointed out that as a lay adviser and McKenzie friend who assists in divorce, ancillary relief and private law matters under the 1978 and 1995 Orders, it is my experience that unlike England and Wales, there is no formal direction (for from example the Family Proceeding Rules Committee) that states that litigants in person do not require leave to show papers to their McKenzie friends and lay advisers. I cannot speak for others in the lay advice sector such as Women’s Aid or the Citizen Advice Bureau, but I can say with confidence that there either is no accepted procedure for lay advisers seeing documents in cases under either the 1978 or 1995 Orders, or alternatively if any global guidance does exist it is not being followed throughout the court system in Northern Ireland. In support of this assertion, and by way of example I will set out a number of situations I have experienced in local courts.

On one occasion I had to give an oral undertaking under oath in the High Court in front of Mr Justice McLaughlin to be granted leave to see papers; whilst on another occasion I had to be given leave to see case papers by a Master that I had already seen; and had admitted to having seen. I have had to apply for, and been given leave to see papers by a range of magistrates after the court made the issue justiciable, by the magistrate raising the matter of their own motion. On numerous other occasions jurists have made no issue about my seeing the papers, and leave was neither sought nor given, and I was granted a discretionary right of audience to advocate my client’s case. I count Mr Justice Weir and the current Lord Chief Justice in the latter category.

I feel that the position in Northern Ireland is unsatisfactory in that litigants in person are unnecessarily being prevented from obtaining assistance as urgently as they require it. On a personal level I am potentially placing myself in an contemptuous position as the law stands in Northern Ireland by seeing papers without leave being granted. It is impractical to expect anyone to assist in a case if they cannot see the papers at the earliest possible opportunity, normally when a client attends a lay adviser.

This position is to be contrasted with the position in England and Wales where Statutory Instrument 2005 No. 1976 (L. 18 ) The Family Proceedings (Amendment No 4) Rules 2005, and subsequent primary and secondary legislation applies, sanctioning McKenzie friends and lay advisors to see the entirety of the papers without seeking leave.

Some authoritative interim guidance setting out the position in Northern Ireland would be helpful until such times as the matter can be considered by whichever legislature ends up dealing with the substantive issue.

Yours sincerely
John Junk

For www.familycourtsupport.co.uk

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