In the recent months the news has been rife with articles reporting on the controversy surrounding the growing phenomenon that is McKenzie friends. But what exactly is a McKenzie friend and are they really the cheap alternative to lawyers that might market themselves as?
What is a McKenzie friend?
The concept of a McKenzie friend derives from the 1970 case of McKenzie v. McKenzie. This was a divorce case in which the husband sought to be assisted by an Australian barrister who was not qualified within the UK. The Australian barrister had hoped to sit with the husband in Court so he could prompt him, take notes and suggest appropriate questions to ask the wife in cross-examination. The trial judge did not allow the Australian barrister to take an active part in the case, except to advise the husband during adjournments. The husband lost the case and subsequently appealed. The Court of Appeal upheld the appeal confirming that every party had the right to have a friend present in court to provide a form of support. From this case the McKenzie friend was born.
Today a McKenzie friend is generally somebody who accompanies a litigant in person (someone without legal representation) to a court hearing for the purpose of assisting them in such matters as taking notes, providing moral support, helping to organise the documents and on occasions whispering advice to the individual. A McKenzie friend is not an advocate and has no formal right of audience. They are also not allowed to conduct litigation or file Court documents and Statements.
Since 2013 the number of McKenzie friends being used in the court system has increased on a drastic scale due to the cuts to legal aid funding in a wide range of areas of civil law, including most family cases involving divorce, child contact and residence, as well as debt, housing, immigration, welfare and employment. As a result of these cuts in legal aid, individuals who do not want to incur the expense of a lawyer are now left with just two options; go to court on their own, or use a McKenzie friend. With this increased demand, the role of a McKenzie friend has gradually moved away from the traditional role of a family member or acquaintance offering pro bono support and it has now become a commercial enterprise with McKenzie friends routinely charging for their time.
Why are McKenzie friends so controversial?
The main concern with the growing use of McKenzie friends is that they work under no compulsory code of practice, they are unregulated, do not have professional indemnity insurance and are rarely legally qualified. Yet they still have the right to charge for their work.
The case of David Bright, which was widely reported in the news last year, goes to highlight the risk that unregulated and unqualified McKenzie's Friends pose to the public. Bright, who was a paid McKenzie friend, was convicted for perverting the course of justice in a family court case and sentenced to 12 months in prison. Bright submitted an expert report during a dispute last year that he knew to be false. It had in fact been compiled by his colleague and partner Claire Mann. Mann, who used her maiden name Silverstone, falsely claimed to be a clinical psychologist. This phoney report caused enormous distress. The court heard that one of the parents involved in the dispute had been 'emotionally and financially' affected by the case and lost contact with his children as a result. Bright's actions were the recent focus on the BBC's Victoria Derbyshire show which aired on Monday 13th February 2017.
Last week it was reported in the news that a second year law student has recently launched an online marketplace to help litigants find McKenzie friends. The marketplace allows businesses, law students and individuals to connect with litigants. Students may charge up to £25 per hour and £100 per day, while businesses can charge £90 per hour and £300 per day. The Law Society have released a statement warning students offering services through an online portal for McKenzie friends that they could be endangering their careers.
Whilst the student who has launched the service claims that each application will be reviewed by a member of the team and each McKenzie friend must adhere to the site's own code of conduct, it still remains the case that those advertising their services on the online portal will be unregulated, without professional indemnity insurance and largely not legally qualified. This means that anyone using a fee-paid McKenzie friend is left with limited – if any- redress if things do go wrong.
The HM Judiciary has recently conducted a consultation on the issue of paid McKenzie Friends. In the consultation, the judiciary proposed a ban on fee-charging McKenzie friends and recommended that all McKenzie friends sign up to a code of conduct. It said that rules governing the courts' approach to McKenzie friends be legally codified. The consultation closed in June 2016 but a response is still awaited. No timescale is in place for when the judiciary will publish any findings on the matter.
It would be unfair to tar all McKenzie friends with the same brush. Although the recent behaviour is concerning, there remain many who offer invaluable time and assistance to litigants and they ultimately help to improve access to justice in the large majority of cases. However, the issue of whether McKenzie friends should be able to charge for their work is likely to remain a point on contention for some time. McKenzie friends remain non-professionals but their ability to charge can result in individuals placing more trust in them completing roles well beyond the initial offer of support and comfort which was originally intended when the concept of a McKenzie friend was established in McKenzie v. McKenzie.
Ultimately, if you find yourself having to make the difficult decision on whether to use a McKenzie friend or a qualified lawyer, the question you should ask yourself is if you were in the desperate position of needing brain surgery, would you be content for someone with no medical training to carry out yours? Probably not - so why would you be willing to use the services of someone with no legal qualifications, no insurance and who is not part of a regulated body when you are in the different but also desperate situation of trying to get a judge to allow you contact with your children, or attempting to get a court to agree to them living with you, following the breakdown of a relationship?
To find out more or discuss your individual requirements in further detail, our dedicated Family Law Solicitors are on hand to offer legal advice and support. Contact us today on 01603 693500 or email us using the 'Make an enquiry' form. Appointments available at our Norwich, North Walsham, Brooke and Sheringham offices.
