Today I’m going to do something I don’t think I’ve done before: look again at a case I looked at here recently (last Thursday to be precise), except this time deal with a quite different aspect of the case.
Once again this post was ‘inspired’ by a conversation between eminent lawyers that I saw the other day on Twitter. Unfortunately, much of the conversation is no longer available, as one of the lawyer’s accounts was subsequently hacked. However, the conversation began with this tweet:
Just had desperate email from someone who has spent over 7k on a mckenzie friend (at £65 ph) that she now realises was a waste of money. >:-[ Just think how much legal advice she could have got for that amount! What ever happened to @JudiciaryUK’s McKenzie friend consultation?
— Lucy Reed (@Familoo) February 17, 2018
The conversation continued with an explanation of the benefits of instructing a qualified lawyer: training, regulation and insurance. I have said the same thing here myself on more than one occasion.
Of course, the anti-lawyers will point out that lawyers charge a lot more than £65 per hour. Well, so do some McKenzie friends: one participant in that Twitter conversation said she had heard of one charging £100 per hour. That is still a lot less than most lawyers charge, but when one takes into account the fact that McKenzie friends do not have the expensive overheads of lawyers (building expenses, staff salaries, insurance etc.), it still represents a pretty decent profit for the McKenzie friend.
But whether a McKenzie friend should charge for their services, and if so how much, is not the point of this post, or the point raised in the case J (DV Facts) that I wrote about last Thursday. The point relates more to those things that a McKenzie friend does not require: training, regulation and insurance.
As I explained last week, the case concerned a father who was seeking a child arrangements order in relation to his children. Of course, legal aid was not available to the father, and he therefore sought the assistance of a McKenzie friend. As I also explained, the case involved the mother making very serious allegations of domestic abuse against the father, and those allegations should have been investigated at a fact-finding hearing.
We thus had the awful prospect of the father, the alleged abuser, cross-examining the mother (or even possibly one of the children) at the fact-finding hearing. One obvious solution to this was the court allowing the father’s McKenzie friend to cross-examine the mother.
The position of McKenzie friends in court proceedings is set out in practice guidance issued by Lord Neuberger, the then Master of the Rolls, and Sir Nicholas Wall, the then President of the Family Division, in 2010. The guidance makes clear that McKenzie friends may not ‘address the court, make oral submissions or examine witnesses’. However, and contradictorily, the guidance later contemplates the possibility of a court granting an application for a McKenzie friend to have rights of audience, although it makes clear that the court ‘should be slow’ to do this. The reason for this is set out in paragraph 19 of the guidance:
“This is because a person exercising such rights must ordinarily be properly trained, be under professional discipline (including an obligation to insure against liability for negligence) and be subject to an overriding duty to the court. These requirements are necessary for the protection of all parties to litigation and are essential to the proper administration of justice.”
Of course, none of these requirements apply to McKenzie friends.
The judge at first instance in the case fell into error by not going ahead with a fact-finding hearing. However, he made no error when it came to considering whether the father’s McKenzie friend should be allowed to cross-examine the mother. He said:
“The idea of a McKenzie Friend, however articulate and experienced, either cross-examining a parent accusing a partner of serious sexual violence or indeed serious physical violence, or even of cross-examining the parties’ 16 year old child if in due course [he] gives evidence against his father, is highly unpalatable and this court would be very disturbed by that prospect.”
In the Court of Appeal Lord Justice McFarlane agreed that affording the father’s McKenzie friend advocacy rights in this case “was not … a tenable solution and was rightly rejected by the judge.” Such an application, he said, should rarely, if ever, be granted.
So we must look elsewhere for the solution to the problem of the litigant in person cross-examining the alleged victim of domestic abuse (the only other option currently available is the unsatisfactory one of the judge undertaking the cross-examination). The matter was, of course, supposed to be dealt with in the Prisons and Courts Bill, which would have allowed the court to appoint a publicly-funded legal representative to undertake the cross-examination. However, the Bill was withdrawn when the general election was called, and we’ve not heard any more about the reform since.
You can read the judgment in J (DV Facts) here.