McKenzie Friends have recently been thrust into the spotlight with the news that over half of all family law cases now feature at least one unrepresented party. With the advent of legal aid cuts and budget trims, McKenzie Friends have come to the rescue, and litigants in person are relying on them more than ever before to guide them through their cases and offer much needed support.

The recent research carried out by the Legal Services Consumer Panel, which looks at McKenzies and possible regulation of this group going forward analyses only those McKenzies who offer assistance for a fee. Whilst the McKenzie assistance Researching Reform offers is on a pro bono basis, we have come into contact with many different categories of McKenzie Friends over the years and the reality on the ground is very different to that which is encompassed in both the 2010 Practice Guidance and the current perception of McKenzies by legal bodies and professionals inside the system.

The 2010 Practice Guidance explains that every litigant in person is entitled to reasonable assistance, and that McKenzies may then assist LIPs with note taking, moral support, help with case papers and advice on the conduct of a case. These last two elements are particularly important because ultimately, it means that in practice McKenzies can, and do, give legal advice. This is where the guidance and the compact perception of lay advisors begins to sit at odds with day to day practice.

For whilst McKenzies must ask permission to have rights of audience and conduct litigation, they are, in fact having to provide the latter, in varying degrees, long before permission is technically required of them.

Under current law, lawyers may not engage in litigation with non-legally qualified individuals. As such, they must send all correspondence to LIPs, who in turn may then share their correspondence and other documentation with their McKenzie. The end result though, is the same – the McKenzie is ultimately entitled to view this material, so that they may advise. And that advice is, by the very nature of the process, both practical and legal.

So whilst current guidance and law has tried, understandably, to compartmentalise McKenzie assistance, what is happening in court rooms and conferences all over the country is not so clear-cut. This contradiction is in part due to the Guidance itself, which allows McKenzies to help with the process of a case – and which therefore embraces the preparation of legal documents and other such matters.

The right to reasonable assistance in this difficult landscape marred by legal aid cuts and budget trims, has created a paradox – McKenzies are set boundaries to keep them at a distance, but they have no choice but to get close up and engage with the system, most of the time, just like lawyers.

This does raise concerns over competence. We sometimes receive requests for assistance from parents who have used a fee-charging McKenzie only to find that they had failed to produce anything for them. One parent we assisted came to us from a Fathers’ Rights Group, whose McKenzie friend had not only taken £500 in fees from the parent in question, but had provided no work for the fee, at all. The parent, exasperated and angry, was unable to retrieve the fee he paid. Court was not an option – he had already spent everything he had on assistance.

Yet in the seven years in which we have worked as a McKenzie ourselves, we have only ever come across one or two instances of poor support from the McKenzie sector. There are of course all sorts of demographics offering Mckenzie support. These include:

• Kind-hearted volunteers who have been exposed to the system, either through a family member or friend in need of assistance
• Paralegals, either for experience as they consider working as lawyers in the future, or as part of their pro bono work for law firms
• Non-practicing lawyers
• Pressure groups
• Members of the public who have been through the court system themselves and want to help others

The quality offered by McKenzies depends, as it does with lawyers, on how long they have been assisting inside the court system, the individual’s own aptitude for the work and their understanding of the legal process.

For us at least, the most interesting, and professional group, are what we call the Founding McKenzies. This group is not responsible for starting the Mckenzie phenomenon itself, but it is responsible for establishing the current trend in support; these McKenzies are the forefathers of this modern movement. This community features particularly skilled, highly professional McKenzies, who have first hand knowledge of the system, having handled their own cases prior to becoming active McKenzies. They also uphold all of the traditional values of legal representation: truth, justice and above all, integrity.

Much of what we have seen from founding McKenzies is of good quality and often, superior to representation some clients have received from lawyers. There are other, less experienced McKenzies also offering excellent support which is filling in gaps, not only from a resource-driven point of view, but from a customer satisfaction and outcome-focused one.

This is why:

• Many McKenzies come to the system either through personal experience or a vocational calling, and so they offer a responsive and intuitive service. They have gained first hand experience of how the system works in practice – which can give them an edge over newly qualified lawyers.
• McKenzies are, fundamentally, addressing the most important aspect of a case first: they offer emotional support, something lawyers at present do not do. By giving LIPs a chance to air their feelings and go over them, and by guiding them through the emotive process of family breakdown, McKenzies present a powerful stabilising mechanism the system so desperately needs.
• The majority of McKenzies even today, actively don’t charge for their support (some ask for their travel costs to court and lunch to be covered, but that’s all). They represent people because they care about the outcomes, and the people they assist.

These factors make McKenzies a triple threat in the market. Low cost (or free), reliable, intuitive support, which more often than not, is coupled with active experience inside the system.

Nevertheless, the vast majority of McKenzie Friends are still only offering very limited support, with the more extensive services mostly being offered by those founding McKenzies who already have at least a decade of experience working inside the system, either on their own cases, or others’.

What does all this mean? Well, we think it means that with so many different types of groups offering assistance, gathering them all up into one Body may prove very awkward indeed. It also means that it may be another decade before we see a significant proportion of McKenzies offering full blooded legal services. Regulation, even self regulation, may be hard to achieve until then.