A week in family law: McKenzie Friends, coercive control, and more

Family Law|March 1st 2019

Article 39, the charity that “fights for the rights of children living in state and privately-run institutions”, is launching judicial review proceedings against the government over its claims that some protections of children in care are “myths”. The charity is seeking to have Department for Education (‘DfE’) guidance to English councils responsible for vulnerable children removed from circulation. The “myth-busting guide” suggests that some duties around social worker visits, protections for missing children, and care leavers’ support can be cut back. Director of Article 39, Carolyne Willow, said: “This document overwrites key obligations within our children’s social care system, which were crafted over many years and subject to detailed public consultations. The protections the guide presents as mythical exist in our legislation and statutory guidance because of the real needs of children and young people.” The DfE would not comment directly on the case, but a spokesman for the Local Government Association said the guidance had provided helpful advice on where councils could able to do things differently if they felt this was in the best interests of children. However, he added: “But it is important that any questions around the accuracy of elements of this advice are clarified as soon as possible, so that councils and their residents can be confident that any action taken is fully in line with current legislation and guidance.”

The Judicial Executive Board (‘JEB’) has published its response to a consultation concerning possible reforms to the courts’ approach to lay individuals, commonly known as McKenzie Friends, who help individuals who litigate without the assistance of a lawyer. The consultation was first opened in 2016, following concerns over the rise in reliance by litigants on McKenzie Friends, as a result of cuts to legal aid. The response said that the JEB was “deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers.” However, the response did not offer a view on whether there should be a ban on fee-charging McKenzie Friends, saying that that was a matter for government. The response only supported the production of a ‘plain language guide’ for McKenzie Friends and litigants-in-person, and updating the current practice guidance on McKenzie Friends. Hmm. I certainly share the JEB’s concerns, but wonder whether an opportunity has been missed to encourage a ban on litigants being charged for services from people who are unqualified, unregulated and uninsured.

The High Court has ruled that a sick 13-month-old girl should receive medical treatment, against the wishes of her parents. The girl was born with kidney failure and doctors said that her one chance for “ongoing survival” was hemodialysis, a process of purifying the blood of a person whose kidneys are not working. The girl’s parents, who Mr Justice Hayden described as having “a deep, profound and simple faith”, opposed the treatment, saying that their daughter’s fate should be left in the hands of God. However, Mr Justice Hayden gave doctors the go-ahead to try hemodialysis, ruling that the treatment would be in her best interests. Let us all hope that the treatment is successful.

And finally, I can’t end this post without mentioning the Sally Challen case, in which Mrs Challen killed her husband with a hammer. Sarah Jane Lenihan, Senior Solicitor at Stowe Family Law’s London Victoria Office, has already written a post here about the case, and I suspect that she may write another now that the outcome of Mrs Challen’s appeal is known (if she has not already by the time this post is published), so I will keep my comment brief. As Sarah explained, the case was about the issue of controlling and coercive behaviour, over a long period of time, and the effect of that upon the victim. The Court of Appeal has ordered that Mrs Challen’s murder conviction be quashed after fresh evidence was accepted, and that there be a retrial. Obviously, this is not exactly the result that Mrs Challen wanted (her barrister argued against a retrial), but hopefully the case will raise awareness of the devastating effect of controlling and coercive behaviour, and that issue will be properly considered in the retrial.

Have a good weekend.

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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Comment(1)

  1. Nicola says:

    Only a fool would voluntarily litergate in person which means those who do are simply desperate. With the obliteration of legal aid and the high costs of legal services, it was only a matter of time for the black market to offer up Mackenzie friends. This is not dissimilar to the back street abortionists, when women trust strangers with their future. 21st century we now have the NHS so can something be done for the law?

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