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:
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,
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 email@example.com.