A newly published report looking at ways to protect vulnerable witnesses in private family law proceedings suggests closer collaboration between judges and McKenzie friends could offer a solution to the current problems.

The document, which was prepared by Family Law researchers at the Ministry of Justice, outlines several ways to protect vulnerable witnesses likely to be cross examined directly in court by their alleged abusers:

• Making public funding available to provide the vulnerable party with an advocate
• Greater support from judges, including relaying questions to the vulnerable witness on the alleged abuser’s behalf
• Creating an inquisitorial system where judges are fully trained to deal with the issues involved
• Strengthening links between the judiciary, the courts, and external organisations like McKenzie Friends and the Bar Pro Bono Unit
• Producing a ‘Vulnerability’ assessment to best address the individual needs of each witness in a private family law case

The report also has some interesting findings relating to judges and their perceptions of McKenzie Friends, which are well worth a read. Whilst the research focuses on ‘Professional’ McKenzie Friends (in this context, advisers who charge for their services, though this is a clumsy definition and many who don’t charge are also professional in the truest sense of the word), the recommendations could include lay advisers who are currently offering their support and advice free of charge.

Definitely worth a browse for a more in-depth look at the above proposals if you’ve got three tea bags and two packets of flapjacks.

It is only a short submission, with a couple of points, but we felt compelled to write to the Judicial Executive Board (JEB) to offer some thoughts on their current consultation on McKenzie Friends, their regulation and how the court system should treat them generally.

We are adding our email below:

Dear JEB,

My name’s Natasha and I run a child welfare project inside the family justice system called Researching Reform. As part of my work I offer assistance as a McKenzie Friend, however I do not charge. 

I would like to offer some thoughts on those McKenzie Friends in the Family Court who do not charge, but who rely on their clients to cover their travel costs and perhaps also a meal during the day if they are in court for any length of time. I am writing not on their behalf, or in their place, but as someone whose colleagues include several Mckenzie Friends in this position. They are very good people, who care about the individuals they help, and are often excellent advocates.

Terminology: I believe the current proposal to change the title McKenzie Friend to “Court Supporter” would be viewed as derogatory and could lead to McKenzie Friends being treated as second class citizens within the court arena. Whilst their level of training and path into advocacy may differ to that of conventional lawyers, McKenzie Friends are still required to abide by the current codes of conduct in place, to prepare and present evidence to the court and when granted rights of audience, to speak before a judge and present their client’s case. Some McKenzie Friends have had extensive experience in court with their own cases and are often better versed in procedure and law than junior lawyers. To classify McKenzie assistance as support rather than a service would create an unnecessary apartheid and one which does not take into consideration the nuanced world of the McKenzie Sector. Legal assistance in whatever form it takes is a cornerstone of our justice system and lay advice deserves to be viewed as a welcome addition of equal worth to conventional representation. I would modestly suggest that if the term is to be changed, it could be replaced with something like “Court Adviser”.  

Developing Rules Of Court: It would be wonderful to have a universal code of conduct, written in plain language, which clearly defines what McKenzie Friends can do, how judges should treat them, and the process by which lay advisers can come before the court, and seek out rights of audience, too. Taking inspiration from the current guidelines, allowing McKenzie Friends who wish to attend court to ask the judge’s permission beforehand is a practical way to ensure McKenzies are included in the process and know where they and their clients stand, preferably in good time should the client need to seek out another McKenzie Friend or be briefed by their current lay advisor should they have to attend court without them. Guidelines for judges too, on how they might approve such an application would be welcome so that lay advisers can understand why their application may have been turned down, and to ensure transparency in the process. McKenzies can also seek out rights of audience, and as with court attendance, a process which clearly defines the grounds upon which a judge might approve or turn down such an application would be helpful, and democratic. Alternatively, as with lawyers, McKenzie Friends could perhaps be given automatic court attendance and rights of audience, denied only if the McKenzie refuses to conduct themselves properly during hearings. McKenzies could notify the judge beforehand that they wish to either attend and, or, speak before the judge and could offer the judge a CV or information on which McKenzie group or association they work for, if any.

Fee Recovery: As an observation, a large group of McKenzie Friends who do not charge for their time do sometimes need their clients to cover their travel costs or to provide them with a meal if they are in court all day. Should the proposal to ban fee charging for McKenzie services be implemented, an exception allowing travel costs and food to be covered by the client would be a welcome exemption for many lay advisers who have given up their time to assist free of charge. 

Thank you for your time,

Natasha 

Don’t be shy- if you have thoughts of your own you would like to share, you can check out the proposals here and send your comments on to mckenzie.friends@judiciary.gsi.gov.uk.

The Judicial Executive Board (JEB) has just published a consultation on McKenzie Friends which focuses on how the courts should approach them, and one of its proposals? To ban any kind of fee charging for McKenzie services.

This latest news will not sit well with lawyers who have been trying to break into the McKenzie sector by offering their services at a discounted price. The JEB’s proposal stems from Scotland’s own stance on McKenzie Friends, or lay advisers who help Litigants in Person (LIPs) when they are unable to afford conventional legal representation: Scotland currently does not allow McKenzie Friends to charge for their support.

This proposal will also be cause for concern for some lay advisers who currently do not charge for their assistance, but who rely on clients to cover their travel costs and perhaps also a meal if they are in court all day. We very much hope the guidelines once drafted, will make an exception for this as these McKenzie Friends are in the main helping out of generosity of spirit and a sense of civic duty.

Something else to think on is the language that’s currently being used to describe the assistance lay advisers give – the legal sector views this assistance as support rather than a service whereas legal representation is always referred to as a service, so we must also question whether this is fair and whether this language either explicitly or implicitly suggests lay advice is not worthy of remuneration.

The consultation paper, which includes a set of draft Civil Procedure Rules and further proposals, sets out the current position in law and subsequent developments. It asks for feedback on the following:

• Terminology: the paper asks whether the term McKenzie Friends should be updated to something that is easier to understand, like ‘Court Supporter’.
• Developing rules of court: should a Practice Guidance be replaced with formal rules of court?
• Providing notice: should there be reforms to help LiPs understand what roles McKenzie Friends can play and any limitations on what they can do?
• Code of Conduct: should there be a universal Code of Conduct for McKenzie Friends?
• Plain language: the JEB proposes a plain language guide for both LiPs and McKenzie Friends and;
• Prohibition on fee recovery: the JEB suggests there should be a prohibition on fee recovery by paid McKenzie Friends. We are told, “The JEB’s intention is to protect the public interest and vulnerable litigants from unregulated and uninsured individuals seeking to carry out reserved legal activities. This approach is also in line with Parliament’s intention that rights of audience (the ability to appear and present a case in court) and to conduct litigation should be strictly regulated.”

The JEB would like to hear from you if you have any thoughts on the above. Submissions will need to be sent in by 19 May 2016 and can be emailed to mckenzie.friends@judiciary.gsi.gov.uk.

A very big thank you to Dana for alerting us to this consultation.