McKenzie Friends, those non-lawyers who offer assistance and in some cases – with the court’s permission – carry out the conduct of litigation or act as advocates on behalf of litigants-in-person (LiPs) have been around (at least under that title) since 1971 (the court had jurisdiction to permit a LiP to receive reasonable assistance long before then). However, it is only really since legal aid was abolished for most private law family matters in 2013 that the number of McKenzie Friends assisting parties to family law litigation has really taken off, with some of them even charging a fee for their services.
The proper approach to McKenzie Friends has been the subject of guidance, first from the courts and more recently in the form of Practice Guidance issued by the Master of the Rolls and President of the Family Division. The most recent Practice Guidance was issued in July 2010 and can be found here. Given the growth in the numbers of McKenzie Friends since that guidance was issued, and in particular the fact that some of them are now charging for their services, it is no surprise that there are now calls for the courts’ approach to McKenzie friends to be looked into again, and possibly reformed.
Last week the Judicial Executive Board issued a consultation paper proposing reforms to the Guidance. Here I give my thoughts upon some of their proposals.
The first proposal is that the term ‘McKenzie Friend’ should be updated to something that is more readily understood, for example ‘Court Supporter’. I agree that to a lay person the term ‘McKenzie Friend’ may not mean anything and that therefore a new term would be a good idea. I can’t say that I am enthusiastic about ‘Court Supporter’, although I’m sure I would get used to it if it were adopted. I do not, however, agree with the suggestion in the consultation that ‘McKenzie Friend’ be replaced with a number of different terms, each reflective of the precise role being carried out by the friend/supporter– that, I think, would be a recipe for confusion.
Another proposal is that the court should require the McKenzie Friend to agree to abide by a Code of Conduct, outlining their role and how it should be carried out properly. I agree that this would be a good idea, which should help to improve standards, although it is difficult to comment any further without seeing a draft of the code, which is not contained in the consultation.
The last proposal that I want to comment upon is perhaps the most contentious: that there be a prohibition on fee recovery by paid McKenzie Friends. The intention behind this is to protect the public interest in facilitating the proper administration of justice and to provide “effective protection to vulnerable litigants who would otherwise have little to no effective protection, or means of redress, from unregulated and uninsured individuals of varying and generally unverifiable competence carrying out otherwise reserved legal activities before the courts”.
I have, of course, written here previously of the dangers of unregulated McKenzie Friends. It does seem very odd that the public are given several layers of protection when it comes to lawyers (compulsory training, regulation and insurance), when no such protections apply for McKenzie Friends, who can do a very similar job to lawyers. Prohibiting the payment of fees does at least mean that LiPs will not be charged for taking the ‘risk’ of instructing someone who has no such protections behind them, but of course it still does not protect the LiP from an inferior service, in the same way as regulation and insurance does.
On the other hand, it could be argued that the legal landscape created by the abolition of legal aid has given rise for the need for alternative sources of legal assistance for those who would have previously been eligible for legal aid. The ‘professional McKenzie Friend’ (as fee-charging McKenzie Friends have been called) is one of those sources of assistance. If they can no longer charge, one would assume that the number of McKenzie Friends available to the public would diminish significantly. Perhaps the retention of fees but with regulation and insurance would be a better way to go?
Whatever, I can’t leave this subject without repeating what I have said before: whilst there are some very good McKenzie Friends out there, the fact of the matter is that by withdrawing legal aid the government has left the poorest in society at the mercy of untrained, unregulated and uninsured legal advisers. Tinkering with the Guidance in the way the consultation suggests will not alter that basic fact.