setting out relevant experience, confirming that he or she has no interest in the
case and understands the MF’s role and the duty of confidentiality.
7) If the court considers that there might be grounds for circumscribing the right
to receive such assistance, or a party objects to the presence of, or assistance
given by a MF, it is not for the litigant to justify the exercise of the right. It
is for the court or the objecting party to provide sufficient reasons why the litigant
should not receive such assistance.
8) When considering whether to circumscribe the right to assistance or refuse a MF
permission to attend the right to a fair trial is engaged. The matter should be considered
carefully. The litigant should be given a reasonable opportunity to argue the point.
The proposed MF should not be excluded from that hearing and should normally be allowed
to help the litigant.
9) Where proceedings are in closed court, i.e. the hearing is in chambers, is in
private, or the proceedings relate to a child, the litigant is required to justify
the MF’s presence in court. The presumption in favour of permitting a MF to attend
such hearings, and thereby enable litigants to exercise the right to assistance,
is a strong one.
10)The court may refuse to allow a litigant to exercise the right to receive assistance
at the start of a hearing. The court can also circumscribe the right during the course
of a hearing. It may be refused at the start of a hearing or later circumscribed
where the court forms the view that a MF may give, has given, or is giving, assistance
which 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.
11) A decision by the court not to curtail assistance from a MF should be regarded
as final, save on the ground of subsequent misconduct by the MF or on the ground
that the MF’s continuing presence will impede the efficient administration of justice.
In such event the court should give a short judgment setting out the reasons why
it has curtailed the right to assistance. Litigants may appeal such decisions. MFs
have no standing to do so.
12) The following factors should not be taken to justify the court refusing to permit
a litigant receiving such assistance:
(i) The case or application is simple or straightforward, or is, for instance, a
directions or case management hearing;
(ii) The litigant appears capable of conducting the case without assistance;
(iii) The litigant is unrepresented through choice;
(iv) The other party is not represented;
(v) The proposed MF belongs to an organisation that promotes a particular cause;
(vi) The proceedings are confidential and the court papers contain sensitive information
relating to a family’s affairs