Friend of Foe?

Lawyers working in the family justice system find themselves fighting on a number of fronts. Not only are they battling a crumbling court infrastructure, a ruthless programme of court closures, a surge in care cases fuelled by austerity and cuts to police and social services – they are also frequently acting against an unrepresented opponent. That adds significantly to the amount of court time the case will take up. And where the litigant in person (LiP) is an abusive expartner, the justice process can be far more stressful and intimidating for the victim. This rise in LiPs is directly linked to the Legal Aid, Sentencing and Punishment of Offenders Act reforms of 2013, which stripped away legal aid support for virtually all private family law matters except those involving allegations of abuse. Legal aid is no longer available for most parental disputes, including disputes over whom a child will live with, what contact they will have with family members or what financial support they should receive. They may find that it is better to have the assistance of a less qualified person, than to have no one – Ray Barry

As the number of ex-partners and parents left to fend for themselves in the courts has grown, a new industry has sprung up to service them: the paid McKenzie friend. These unqualified advisers have become a common feature of the family courts, but though they offer useful support in many cases there are serious concerns. In February 2016, the Judicial Executive Board (JEB) opened a consultation on the role of McKenzie friends, including whether there should be a ban on them charging a fee to clients. But when it finally published its consultation response in February 2019, the JEB ducked the issue and concluded that given the link to legal aid reform, this was a matter for government to decide. That said, the JEB stressed that it remained “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”. In March last year, chair of the Commons Justice Select Committee, Bob Neill MP, called for a ban on paid McKenzie friends in the wake of a botched clinical negligence case in which errors made by an unqualified ‘legal adviser’ left a disabled claimant without evidence and saddled with a five-figure bill for costs. Neill said the case “reinforces the conclusion that I have drawn from all the evidence the Commons Justice Committee has heard about unregulated paid McKenzie friends, that it is time for parliament to bite the bullet and ban this unscrupulous practice”.

ILL-ADVISED APPROACH

The issue of McKenzie friends returned to the headlines last month when an academic study by Leeds Law School and Birmingham City University found that McKenzie friends were giving “biased and misleading advice” online. The researchers examined more than 170 threads from Facebook groups and online forums run by McKenzie friends, all relating to public or private family law issues involving children. The study looked at the accuracy and quality of advice given. Professor Tatiana Tkacukova led the study and tells Solicitors Journal that around 40 per cent of the advice given gave cause for concern. She explains: “Some of the legal advice was useful because it was specific and tailored to the individual’s needs. But the non-conciliatory tone was problematic.” She adds: “Some of the advice was not necessarily accurate…

The McKenzie friend would explicitly take the side of the original poster [in the online forum] against their ex-partner, rather than challenging it. Or they might say something like, ‘engaging with social services is [only] voluntary’ – whereas a legal professional would be encouraging someone to engage with social services, as it might give them the opportunity to challenge a negative report, for example.” “Occasionally”, Tkacukova points out, “the McKenzie friend would be explicitly against social services, Cafcass or the family courts, for example with comments that they are gender biased against fathers, in favour of mothers.” In one instance, a McKenzie friend advised an individual that if he was diagnosed with a serious mental illness he should ensure social services do not find out. “That potentially puts the child at risk”, warns Tkacukova. She adds that while some McKenzie friends stated online that they did not offer legal advice and could only offer procedural and moral support, in reality some of the advice given did in fact cross over into the realm of legal advice.

BRIDGING THE GAP

Given the difficulties being caused by some McKenzie friends, is a more structured framework incorporating some client protection, needed for the sector? Ray Barry is chair of the Society of Professional McKenzie Friends (SPMF), a small association that offers such a model. The SPMF insists that McKenzie friends must meet one of three requirements before they can join it. They must either be a member of a professional body that regulates their conduct (such as a barrister, solicitor or social worker); or have a law qualification “or other qualification relevant to their field of work” which is equivalent to at least A-Level; or have worked for at least twenty hours a week as a McKenzie friend for at least three years. All members must prove they have valid professional indemnity insurance which covers giving legal advice. The SPMF has just 26 members whose maximum hourly rates (ranging from £40 to £125) are published on its webpage.

Barry believes his association offers a model that bridges the gap for clients who cannot afford a qualified lawyer. He says: “It’s a matter of balance. Someone who engages a McKenzie friend understands that this is a less [qualified] person, and the things that they are allowed to do are [more limited]. It’s a choice that the consumer makes. If they can’t afford the fees of a solicitor, it is an option that is affordable for them. They may find that it is better to have the assistance of a less [qualified] person, than to have no one.” The SPMF was set up in 2014 after a Legal Services Consumer Panel report ruled out statutory regulation and called instead for the sector “to develop a credible system of self-regulation to earn greater trust from judges, the legal profession and the general public alike”. Barry comments: “The quid pro quo implied was that membership of an organisation such as ours could be used by judges to decide what level of assistance might be given in proceedings – they have discretion to grant rights of audience or to allow us to conduct litigation. That would seem to make sense, and the court would know that certain McKenzie friends who belong to a trade association adhere to certain standards, so more trust [could be placed in them]. But that hasn’t happened, and that’s a disappointment.” Membership of the SPMF has been rising steadily but Barry admits that the increase in non-member McKenzie friends is “worrying”. He asks: “Why wouldn’t they choose to be members? We’ve noticed some disturbing conduct by non-member McKenzie friends. I suspect they don’t want to join because they don’t want to be held to account.” SPMF members often encounter clients who have previously used non-member McKenzie friends. Barry notes that the standard of work they witness is sometimes “shocking”. He says: “Our members are coming across examples of people acting unprofessionally in surprisingly poor ways. For instance, documents that are poorly written; or where they have misunderstood the principles that apply in proceedings, asking for things that the court cannot grant. “There’s also some very bad grammar – things that school children would be pulled up for.” He adds: “You worry about what these McKenzie friends are like when they’re actually in court; but no one sees that as they are mostly operating in family proceedings, which are closed.” While such hearings may not be open to the public, lawyers who frequently appear in the family courts are familiar with the problems caused by McKenzie friends – and indeed the difficulties caused by LiPs more broadly. “The number of LiPs is just going up and up”, laments Cris McCurley, partner at Ben Hoare Bell and a member of the Law Society’s Access to Justice Committee. “LiPs really elongate the time that it takes to hear a case. In one recent example involving an extremely aggressive father acting as an LiP, a hearing that would normally take 20-30 minutes took several hours, because he kept storming out and coming back in.” She cites a recent case in which her client had suffered from post-traumatic stress disorder as a result of an abusive relationship. The abuse had also been directed at the children. The father, who was being advised by a McKenzie friend for part of the proceedings, sought appeal after appeal when findings of fact were made against him. “It was going on for months and months”, recalls McCurley. “A lawyer would have advised him not to appeal. On the second appeal, I asked the McKenzie friend, why are you advising him that, he has no prospect of success?” McCurley adds that the relevant practice direction now alerts lawyers to be on their guard against alleged abusers seeking to use the court process as a continuation of their abuse. “It’s a way to get at the victim. Practitioners are told to be aware of that.” For Jenny Beck, director of Beck Fitzgerald and co-chair of the Legal Aid Practitioners Group, one of the dangers in using McKenzie friends is that litigants may not understand the limitations of the advice they are receiving. “It is very dangerous, because the person can think they are getting legal advice,” she says. “There may be some aspects of family law that are more straightforward and common sense driven; for example, a father seeking to negotiate access to his children where there is no allegation of abuse… [But] one of the problems is that sometimes the McKenzie friend doesn’t actually know what they don’t know; so they can and will give poor advice. “I’ve heard quite a lot of disaster stories, for example where financial issues were resolved… but completely ignoring pensions. People have gone away from the family courts entirely prejudiced – but there is no comeback if things go wrong.” She adds: “McKenzie friends purport to be able to do the same job as a solicitor for a fraction of the price. And who wouldn’t want that? But they are unqualified and unregulated. People are making money from extremely vulnerable people.” Would a more regulated framework for McKenzie friends offer a solution? Beck is unconvinced. “Wouldn’t you want your adviser to be qualified? If you were having an operation, you wouldn’t just ask someone off the street to take out your appendix.” She adds: “I understand the need to support people going through the court process. But the correct answer is to bring back legal aid so that people can be properly supported throughout the process; not using the sticking plaster of unqualified, uninsured people, which can result in an order being made that is not in their or their children’s best interests.” Reinstating legal aid at the early stage of proceedings would not just be beneficial for parties, it would also make financial sense. The Law Society has proposed that, where eligible, both parties should be legally aided up to and including the finding of fact hearing. This would dramatically reduce the court time needed for the hearing itself (a Law Society analysis from July 2018 calculated the value of court time at £2,692 per day). But crucially, it would also save the emotional and financial costs of unrepresented individuals pursuing futile claims with little chance of success. A sensitive but frank assessment of the merits of a case at an early stage by a qualified solicitor could save a huge amount of court resources. While the Law Society’s proposals are being considered by the Ministry of Justice, no decision has yet been made – not helped by the fast turnover of lord chancellors in recent times. “This would be a very easy, cost neutral way to improve things”, remarks McCurley, “but it doesn’t feel as though there will be a change soon”.

Rachel Rothwell is a freelance journalist