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.
The most attractive feature of McKenzie friends is that they (unlike most lawyers) are more than willing to oppose social services and fight hard for the return of children to their parents.You will rarely if ever hear a McKenzie friend advise a parent to “go along with social services” or to say in court “we neither agree with nor oppose the interim care order” (a craven surrender);They never advise parents “you have no need to go to court as we shall speak for you” (base treachery) and they never do deals with social services agreeing to care or adoption behind the parent’s backs !
On the whole therefore it is better to have even an ineffective McKenzie friend because at least you will not have a lawyer- enemy in your camp waiting to betray you and your children;
Thank you, FA.
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Les Culshaw said:
McKenzie Friends are the current trend in the family courts following family separation and the stoppage of the former legal professions bread and butter (Legal Aid) leaving some parents in a disadvantaged position when their ex partner has legal representation. This aggressive form of representation knowingly takes advantage of the poor “litigant in person” often bullying them into agreement over issues without them fully understanding the short or long term implications. A good McKenzie friend will shield their client from such poor standards, tactics.
The courts appear to have a mixed approach to the McKenzie friend being granted the two separate rights of audience and litigation. Some wiser judges opt for the simple “let the McKenzie friend explain their clients position” some give you a free hand whilst some use the as and when it is needed approach providing there is no objection from the other parties to the proceedings.
My personal experience tells a simple version, if you attend a court often enough you get know by all and develop a working relationship that should never be taken for granted and respect professionalism you are treated the same. This makes resolving the issues easier with flexibility afforded by all.
On occasion I have encountered a judge who is of the old school, but then the wise thing to do is seek the support of the other parties representation in a request to ” directly productively negotiate” with the representation to further the court process. Quoting FPR 1.3, FPR 4.1.3 (o) it can get a frown but currently it has never been refused. The tools of the court are there to be used as it is understood that the judicial process is to scrutinise then decide not simply rubber stamp on parties application due to good preparation voiced with an eloquent tongue.
I suggest that currently without the assistance of McKenzie friends the courts would be in chaos with many applicants, respondent turning up at court with nothing other than a pack of mints and change for drink. Along with a substantial increase in delays and appeals.
Personally I believe the future is fruitful for professional McKenzie friends within the family courts and a viable lower fee option as quasi- solicitors for counsel in the direct access market. Such a working relationship is possible now. However it would need clearer regulation, guidelines.
The gate within the Legal Market has been opened but recent publicity has painted two pictures of the future trend that are very different indeed if not completely fascinating to those legally minded.
A few simple thoughts and views from a mere lay person, McKenzie friend F.Inst pa
Thank you, Les.
I am proud of who I am and what I do for my clients. I am proud of the excellent reputation I have worked so hard on. I have assisted clients successfully to gain 9 permissions in the last 6 months against placemen orders. I wrote the arguments that overturned a placement order on two Slovak boys
Jonathan James said:
The truth of the matter is that particularly in s.8 Children Act applications, there really isn’t any significant element of law in the mix. What is needed is tact, realism, a clear idea of what is best for children and above all, inexhaustible patience. None of these get taught at Law School and lawyers have no monopoly on them – far from it. So in terms of the vital shuttle diplomacy which makes or breaks a case and which should take place outside the courtroom itself, I see no reason at all why a McKenzie Friend with those qualities should not be every bit as effective as any qualified lawyer.
As to regulation of MF’s, how could we regulate to ensure that they have the key qualities? I’m not seeing what in realistic terms could be done.
Thank you for your comment Jonathan; that was very interesting indeed.
Having had 3 McKenzie friends working on my case, I would put them in a sliding scale of competence.
The first should not be allowed anywhere near a courtroom! The Judge ended up banning him from the court! He still “talks the talk”, charging people outrageously, not just for court assistance but by the phone call too for his “advice!” Everyone should steer clear and not get sucked in by “fancy writings or legal speak.”. When caught up in this quagmire you reach out to grab anyone that appears to know what they are doing. We were steered down a path by him that was totally wrong. Knowledge that comes too late when you are careering downhill inside a courtroom!
The second one unfortunately did not pick up where the court had left things and went along another track, opening more of Pandoras box. Somewhat disorganised and missed a vital day of us giving evidence. Praised by the Judge. The case was lost.
Switching ” horses” again for the Appeal we chanced upon a very competent Mc Kenzie friend. Despite his considerable efforts we were not successful in our Appeal nor in a Chance of Circumstances afterwards but I would not hesitate to recommend him. I just wish we had found him earlier and things may have turned out differently.
Hindsight is a wonderful thing! When you are in the midst of a quagmire you clutch at straws assuming that anyone involved in being a Mc Kenzie Friend knows what they are doing, or they wouldn’t be doing it. However some are in it purely to make money from those who don’t get legal aid and are unconcerned if you win or lose your case as they will always win and they just move on to the next unsuspecting victim!
Mc Kenzie friends are found when trawling through the internet, usually once the case has started and that needs to change. A Register listing all Mc Kenzie friends should be given at the outset. That would have been helpful.
Maybe there should be recommendation rather than regulation.
Hi Dana, that sounds like a great idea. I like the idea of a register with details on each McKenzie and an attached page which allows you to give feedback on each one!
We hear the opposition to McKenzies but in reality the noise is a distraction. The fact is that the courts and many of the professionals within them, on both sides of the Bench, are unfit for purpose. The courts and the adversarial system may well be suited to criminal and civil litigation, tho even that presumption is proven wrong every day. The same model should never have been applied to family courts. Having applied the same model, the usual protections afforded to criminal and civil courts are not enforced in family courts. The result is often a free for all where dirty practices abound. There is no effective or timely redress.
The consequent charade is acted out in front a judge with legal qualifications, hardly appropriate when deciding matters in the best interests of children. Perhaps unsurprisingly, private law cases drag on and on, not due to their complexity but the inadequacies of the system and the professionals, who have no incentive to get matters settled early. Public law cases are rigged against the parents and the cases being dragged on at public expense has now been stopped by time limits favouring permanent removal if things are not solved during the new timeline.
There is no league table of solicitors; you can’t find out about the performance of solicitors and you can’t publicly complain about them. You can’t choose your judge or social worker. You can opt for a an expert witness but the judge chooses. Most experts have been shown to be as inept and full of empty opinion as the rest. Many are arrogant, and the interests of the terrified client or the relevant children are orally ventilated, but not really considered. The only person who can help a litigant through the emotive side of things in the courts and who the litigant has a chance to get to know is a McKenzie. A bad performance on the part of a McKenzie can get widely publicised within their community. Not so for the others. Bad professionals and judges are anonymous.
I have worked with professionals who seem less than competent but are in reality aware of how easily things can go wrong. They would rather keep their client’s case in courts for years on a review basis than have their client struck out. They achieve by piecemeal, albeit at great expense. The removal of legal aid will see this careful approach die in many instances where the belligerence of the opposing party made the approach the only one viable. Forget not that the hearings are in front of judges often not appropriately qualified to hear this type of case, and the judges will more than likely be inconsistent, with varying degrees of interest. The best that can sometimes be achieved is to nudge the case to the next hearing. The trouble looming here is that the McKenzies who work for less than, say, £30 an hour, will not able to engage in such intense, long term projects. For litigants being forced through battles of attrition, such as protracted contact cases public law cases against a nasty local authority, the prospect of affording a robust and experienced McKenzie to closely engage with hands on and sleeves rolled up for as long as is necessary seems unlikely.
To return to my starting point, it is the system at fault. Anyone who achieves good outcomes for children despite this system deserves credit. But I do wonder whether the McKenzie is and will increasingly become a prop for a system that must die.
Thanks for your thoughts, Stu. I think Mckenzies are supporting the system and it could go one of two ways. As you mentioned, the system may become extinct for being unfit for purpose, or, it may evolve, and that I think is equally exciting. The McKenzies of today, may well be a new and improved hybrid of lawyer for tomorrow.
Sam Smith said:
This is wrong in law. The current guidance explicitly states that McKenzie Friends may give legal advice and lawfully charge for it. Pgh 27.
Giving legal advice is not a regulated activity under the Legal Services Act 2007. Creating instruments, is not a regulated activity except in relation to a small number of documents unlikely to be encountered in a family Court.
Sam Smith said:
I have written my own article on this, following up on yours – http://matthewhopkinsnews.com/?p=544
Thanks for sharing, Sam.
Hi Sam, I’m not sure what you think is wrong in law. You’re right that the guidance says McKenzies can give legal advice and charge for it. No one here is saying that’s not the case. What I mention in my post are the contradictions present in the Guidance.
Sam Smith said:
Sorry. I was not clear. To be honest, this whole thing needs to be sorted out by legislation.
Don’t worry…. yes, there needs to be clarification in this area, it’s a little muddled.
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Kenneth Lane said:
As Natasha has outlined so well, McKenzie Friends bring a refreshing and different approach to matters involving children in separating families, often providing emotive support and understanding for clients that is missing from Family Court Proceedings.
Perhaps an interjection by MFs earlier in such disputes might help more parents to achieve or work toward amicable child-centred solutions, and explore or reconsider the option of mediation. Also, there may be scope for providing, or involvement in, ‘parent awareness training’ for parents whose decision making about children’s arrangements is temporarily impaired by divorce trauma. As such, MFs might engage by helping parents understand the ramifications of parental alienation, and the benefits for children of being loved and cherished in two homes.
Working with one parent with the right sort of support can often change the relationship dynamic and lead to more amicable and workable child-centred solutions. Further, if early guidance is provided to parents by MFs on what the norms of contact might be, and what a Court might endorse, there may seem little point in litigating in the first place.
There is the potential for MFs to play a key role in changing social awareness to such proceedings. But like them or not, they are here to stay – and their involvement should perhaps be welcomed, and encouraged.
Many thanks, Kenneth and I agree with you; McKenzies have a lot to offer.
McKenzies may be the only option for many! I do think the family courts are not fit for purpose and there should be a way of keeping families together, where possible. The cost to the government (taxpayer) can hardly be contained at the escalating rate of kids being taken into care. Sir Mumby is going to have to change a lot more or this situation will be totally unsustainable as some states in the USA have found. As more people become aware of the reality of the family courts, it will become a powder keg that will blow up in the faces of the government!
Thanks, D. Munby is certainly pro transparency, though I’m not sure yet what he’s trying to prove. Time will tell, as always.
Interesting post – and some very good comments!
I just wanted to chip in with a thought – I’ve done a bit of free McKenzie work myself, always around the issue of “contact”. I’ve found (in all cases) that the real work takes place outside the court room.
I’ve never been one for giving advice – rather the bulk of my work as a MF has been supporting parents address the issue and question of what is really best for their children.
I have found this question to be at the heart of all cases – and my own experiences have taught me the answer is rarely straightforward. It is often fluid / dynamic. Sometimes the answer is at odds with what the parent wants for themselves!
Time and other constraints (and a lack of some key skills) have resulted in me limiting my MF work down to an absolute minimum. That said, I want to tip my cap to all the MFs out there supporting parents – it’s not easy work, but it really does help!
Thanks for the post, Nats. Always interesting things on your blog 🙂
Thank you, OD. I think you touch on an interesting point – much of the work is not about the law, after all.
Kenneth Lane said:
I’m sure that many people will agree that Family Courts, along with ‘Contact Centres’, should be made harder to get into and easier to get out of.
Parents who subject their children to a needless ordeal following separation may benefit from early help and support with ‘assisted parenting planning’ when their decision making is temporarily impaired by divorce trauma. The Family Court does not offer this service in its present form – and all too often rewards an obdurate parent, surfing the crest of a wave of false or unsubstantiated allegations, whilst putting the needs of their children second or last.
A lack of fosterers in London has prompted a plea for fosterers to come forward. The article went out in the Evening Standard paper 12.05.14. Londoners were being urged to consider becoming foster carers. Currently across London, 7,500 children are living with fosterers at any one time and they need more, as a further 1,025 families will be needed for this year alone! How do they know this? Is this how many are going through the London courts now?
Whilst they say they want foster families, they urge people of all backgrounds including single, couples, heterosexual or gay and urged anyone interested to come forward.
Since they were mentioning the lack of extra bedrooms of the housing stock in London as a reason for the lack of fosterers, I don’t think it will be long before shared bedrooms or even beds in sheds become the norm!
They forget a lot of people who live in London do not own their own homes but rent, live in small houses or flats or bedsits, many are transient, some students, more billionaires than any other country and of course the tourists. How many of them or of the rest, will be families who want to foster? “…as it can be life altering experience for children”
Pleading for foster carers will bring in the wrong sort, those motivated by money or worse! How many are going to have the skills to cater for these vunerable and traumatised children taken from their homes? The demand is for fosterers to look after teenage mothers with babies, groups of siblings and children with disabilities?
Why doesn’t Mumby send out a message to all judges to look for alternative solutions instead of taking the child from their home, just in case? That way there would be foster carers for those children who are in dire need instead of the system being clogged up with children taken on minor but solvable issues.
Some things change for better and some worse ! In the good old days ANY PERSON could apply for a care order to be discharged any person friendly with the parents but “courtwise” did so (calling parents and children as witnesses). When the children act abolished that possibility they opened the monopoly door to hack lawyers only interested in appeasing the local authority !
This evening Baby Sellers is on Sky channel 156 Lifetime. This is the film based on the true story of a major US Adoption Agency, owned by Carla Huxley, who was secretly operating a dark infant trafficking enterprise! Stealing children! Its on at 12:30 am.
According to US Department of Human Health and Services, human trafficking is the fastest growing and second largest criminal industry in the world today!
….and still this government is promoting Adoption to persons unknown!
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