Reaching a conclusion from the wrong direction

Family Law|November 11th 2014

The issue of McKenzie Friends, particularly those who charge for their services, is back in the news. On Monday the BBC ran a story on the subject, written by their legal correspondent Clive Coleman. It is generally a well-written piece, giving a balanced view of the subject, including the pros and cons of McKenzie Friends. In fact, I only have one problem with the piece, and that is the final paragraph.

I have written here previously about McKenzie Friends. In particular, I wrote a post back in April referring to the report of the Legal Services Consumer Panel which found “that the potential benefits to litigants of fee-charging McKenzie Friends outweigh the potential risks and they should be accepted as a legitimate feature of the legal services market”. I did not agree with that conclusion, considering that exposing the public to advisers who were unqualified, unregulated and uninsured was like stepping back to the Dark Ages when the public ran the gauntlet of charlatans and frauds, with no recompense if things went wrong.

The final paragraph of the BBC article also refers to the misgivings of lawyers about the finding of the Panel. In particular, it refers to the Panel’s conclusion that fee-charging McKenzie friends should be viewed as a source of potentially valuable support that improves access to justice and contributes to more just outcomes, and the fact that the Panel doesn’t favour regulation of McKenzie Friends, as the cost and administrative burden could drive them from the market or put their prices out of reach of consumers who use them for affordability. As the article says, many in the legal world (including myself) “would say those are expedient conclusions driven by the near decimation of legal aid in civil cases.”

The article then concludes:

“But perhaps they haven’t found themselves in the new world of litigation, with a broken family, little money and in need of a “friend”.”

With respect to Mr Coleman, the logic of that goes in the wrong direction: instead of determining the conclusion on the basis of what is acceptable and what isn’t, it takes away the option that would have been acceptable, looks back and says that what was previously not acceptable is now acceptable after all. To use a medical analogy (as Coleman did at the beginning of his article), it is rather like the Government saying that a high mortality rate from a particular illness was unacceptable, telling the NHS that it could no longer use the cure for the illness and then saying that a high mortality rate is acceptable after all.

I can see that the conclusion of the article gives the practical view, saying: ‘we are in this situation and must make the best of it’, but that to me is defeatist. In 1949 legal aid was introduced because it was considered wrong that access to justice should be determined by means. That was the case then and remains the case now.

What has happened here is that we have acquiesced in the view that it is acceptable that we should have a two-tier legal system, in which those with money have a better system of justice, and those without have an inferior system, or no justice at all. That is something that, despite no longer practising and therefore having no vested interest, I am not prepared to accept.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Winston Smith says:

    The problem was twofold in the Family Court.

    Public Aid Funding was virtually not available unless you had a good chance of winning.

    very few parents won appeals.

    Most solicitors did not mount fighting defences and were most reluctant to go against the opposing legals.

    Sofamilies just didn’t win.

    We specialise in opposing FII accusations and have woninsituations where legalaid solicitors would not mount clear defences and were about to lose.

    If you don’t want MK’s you must have a specialism of Public Defenders who will have a financial incentive to winthe case.

  2. Ria Cohen says:

    i am heartily sick of seeing articles such as this which make the sweeping generalisation that ALL McKenzies are unqualified charlatans! I was a family lawyer in private practice for 30 years. 6 years ago I had the misfortune to be made redundant. Having health issues also means I M unable to work full time so I decided to establish my own Mckenzie Friend practice.
    Please refrain from tarring us all with the same brush! Some of us do know what we are doing and do understand court rules, procedure and practice. The legal landscape is changing and the traditionalists are going to have to change too!

  3. Michael Robinson says:

    Some McKenzie Friends are very good, some are not. It all comes down to commitment, experience and capability.

    The problem for the legal profession is that legal aid won’t be coming back. Criticising those plugging this gap and lumping them all in together is no different to those who criticise the entire legal profession for being money grabbing, lazy and putting their clients before child welfare. Both criticisms are unfair when directed blanketly. I regularly point out those solicitors and barristers who do pro-bono work (and Munby recently praised Withers for their help in relation to parents with specific learning difficulties).

    It’s not unusual to get judges complimenting MFs. Where there are bad ones, the court has the power to make injunctions to prevent them entering court again. That point is specifically raised by Wall in his 2010 Practice Guidance. The court may need to exercise that power more, but perhaps judges are best placed to observe the MF and form a neutral conclusion.

    Michael Robinson

  4. Stitchedup says:

    “Some McKenzie Friends are very good, some are not. It all comes down to commitment, experience and capability.”

    Ditto for lawyers, though experience doesn’t always guarantee capability.

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