Family law

By David Burrows, David Burrows, Bristol

Advocacy for a litigant in personIt is necessary to distinguish between a McKenzie friend (McKenzie v McKenzie [1971] P 33) giving assistance, and a lay advocate acting for a litigant

In the first case, the friend gives assistance and advice, but the litigant still represents him/herself in the proceedings.

An advocate, by contrast, acts for the client and must do so with independence in the interests of justice.

In Clarkson v Gilbert and ors (2000) The Times, 4 July the Court of Appeal recognised that, with the reductions in availability of legal aid, there would be more need for assistance for litigants in person.

However, where an application was to be made for appointment of someone without rights of audience, then the applicant should apply in person, should explain why there was a particular need for assistance - here the litigant was ill and had no means to pay lawyers; and, even after the appointment, the litigant should remain involved in the proceedings.

Freeing for adoption and contact with siblingsIn Re F (Minors) (Adoption: freeing order) (2000) The Times 6 July, the Court of Appeal held that it was more important to have regard to the wider issues concerned with the welfare of a two-year-old child than to give any particular priority to considerations of contact with her older siblings.

To insist - as did the child's father here - that the child might need to retain such contact went beyond the view of a reasonable parent (Re W (An Infant) [1971] AC 682).

The welfare of the child here, which demanded freeing for adoption, overrode the views of the objecting parent (Re C (a Minor) (Adoption: Parental Agreement; Contact) [1993] 2 FLR 260): the father's objections to the freeing order did not begin to counter the strong need the child had for a permanent placement.

LSC and the family lawyerThe Legal Services Commission's newsletter, FOCUS 31 (in its new format), has hit our desks in the past couple of weeks.

For the family lawyer there is clarification (p12) as to the need for prior authority in public law children proceedings: generally authority will not be granted where assessment is ordered on the making of an interim care order (Children Act 1989 s 38(6)): the local authority, it is said, should pay).

In all other instances, leave of the court for the report will be required, as before, for a grant of prior authority.

More puzzling, and much more contentious, is the Commission's statement (p 10) that under the new ancillary relief rules the lesser-paid general family help only will available up to FDR.

This blithely overlooks the fact that the meat of the work to achieve a settlement must be carried out before FDR, probably even before the first appointment.

This is not as set out in the Funding Code (see definition of 'legal representation', which includes'representation in proceedings, including steps preliminary or incidental to proceedings').

Practice Direction: ancillary reliefThe confusion over the recent Practice Direction (Family Proceedings: ancillary relief procedure) [2000] 1 FLR issued by Dame Elizabeth Butler-Sloss P is compounded by the fact that it was only published in The Times on 4 July 2000; and it is not accompanied there by the pre-action protocol to which it is the pre-amble.

A judge has recently been heard to say that non-compliance with the protocol may be visited in costs; but on what basis remains unclear.