The Legal Aid Sentencing and Punishment of Offender Act 2012 [1] came into effect in England & Wales during April 2013. This statute, in part, dealt with how public funding would be granted. In respect of family proceedings, this would now primarily be limited to those people (or any relevant children the case concerned) who could demonstrate to the legal aid agency that they were at risk of or had suffered abuse.
I have personally witnessed courts and their staff facing very anxious people involved in sometimes very complex legal proceedings. This includes having to navigate themselves around the basics of litigation from presenting their cases to the court, to dealing with opponents, and to getting the correct paperwork in order. This gave rise to the proliferation of “professional” McKenzie Friends, filling the vacuum left by litigants desperate for representation and support.
What is a McKenzie Friend?
A McKenzie Friend (“MF”) is a vital component of the English Legal System for people who need support. Court proceedings are not an easy process to go through at any time and are quite simply daunting for most people represented, let alone those acting in person. For those who need support, a MF is ideal. The court needs to be notified immediately via the usher that a MF is being proposed to support a litigant. The MF needs to provide their CV to the usher and some courts require a form to be completed by the MF in respect of the MF supporting them. A McKenzie Friend cannot address the court as the advocate of the litigant, they cannot deal with litigation or case management on behalf of the litigant nor can he examine witnesses during trials. The court can grant the MF permission to speak on behalf of the litigant, known as granting “rights of audience,” but only after careful consideration and in exceptional circumstances.
Therefore, for the unrepresented party, the McKenzie Friend can prove to be of great assistance.
The Issue With McKenzie Friends
The difficulty has been the rise of “professional” MFs.
A solicitor, barrister, or legal executive undergoes academic legal training, a tough vocational course then rigorous training all prior to being formally qualified as a legal professional. Once qualified such lawyers are under scrutiny from their professional bodies, they agree to maintain ongoing training to maintain current knowledge and require professional indemnity insurance. Therefore, lawyers are very well trained and well regulated to administer legal advice, represent clients in and out of court and advocate on their behalf in court.
The stark difference is there are no legal requirements for a “professional” MF to undergo any professional training, to undergo any ongoing training, to have insurance in place, nor are they regulated in any manner whatsoever.
“Professional MFs” who charge for their services fill the void left by the legal aid agency for litigants believing, wrongly at times, that a lawyer would simply cost too much so they retain the services of a “professional” MF. This places that litigant at a distinct disadvantage of being at the risk of relying on incorrect advice and having no recourse at all if something goes wrong.
I have encountered MFs in court who relish the opportunity to speak on their client’s behalf outside court, proudly share their CVs (which invariably include details about the bad experience the MF had in the family court personally) and do their best to take over the hearing. All of which do nothing more than to work their already anxious and nervous client to fight anything suggested to settle or agree a dispute.
Every litigant is entitled to support in court, the MF system is there for that purpose to ensure everyone has a right to a fair trial and access to justice but, this has been exploited by disingenuous people offering help to litigants who may not understand the difference between professional lawyers and MFs.
If a MF is willing to help you they should do so without charge. This should be to reflect the strict limitations a MF faces inside and outside the courtroom. This also reflects the fact that any advice you rely on from the MF is at your own risk. If your friend told you to not to change a tyre on your car and you followed their advice when your tyre explodes you would not seek compensation from your friend. If a professionally trained mechanic at the dealership changed your tyre and it exploded they would be approached for repairs and compensation. The same principle applies here except that if you paid your MF for the advice and the tyre still exploded there are no safeguards in place that you would have with a professionally trained lawyer.
What are the alternatives if you cannot afford a Family lawyer?
The MF system works to help people who cannot afford a lawyer or are not entitled to legal aid. The MF system does not work when the MF is not trained, regulated, insured or competent to advise or represent you, AND they charge you for this.
If a MF wants to assist you, then this is a bonus as the burden is lightened in court so you can hopefully focus on discussions in court, the MF can take notes and help with any paperwork.
If a MF is not available almost every family and civil court has an organisation in the building known as Support through Court, formally known as the Personal Support Unit[2] available who essentially provide MFs to help you at court with documents, forms, drafting, filing and if available will sit with before during and after the hearing at no charge. As said above in exceptional circumstances the court is entitled to permit the MF to speak on your behalf during the court hearing.
Most solicitors offer a fixed fee scheme at times less than or equal to what a “professional MF” will charge for advice, representation in court or both.
In conclusion, get a legal specialist to provide professional advice and support, get a layperson to provide moral and practical support. This ensures that everyone knows where they are, what they can do, what they cannot do and, more importantly, if you are paying, you are spending your hard-earned money wisely.
Legal Aid Family Law Solicitors
At National Legal Service Solicitors we are acutely aware of the devastating impact of the legal aid cuts – it is clearer now more than ever that Legal Aid matters. As a firm, we are committed to ensuring that our legal services can be provided to as many vulnerable people as possible through our network of 19 branch offices.
We are proud to be one the fastest growing legal aid firms in the UK, specialising in Domestic Abuse, Care Proceedings and Private Children Law matters. We also offer affordable rates for those who would have qualified for legal aid before the cuts. For more information, please call us on 0203 6015051 or fill in our contact form.
[1] http://www.legislation.gov.uk/ukpga/2012/10/contents/enacted
[2] https://www.supportthroughcourt.org/
