McKenzie Friends

We are very grateful to Becky Jarvis for this useful summary and description of the role of McKenzie Friends. OnlyMums and OnlyDads have at their heart a belief that where possible Mums and Dads should take the best possible professional legal and mediation advice especially during Children’s Act proceedings. That said, we know many (dads in particular) rely on the role of McKenzie Friends and it seems right to increase understanding of this role. Thank you Becky…

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A ‘McKenzie Friend’ is the term attributed to someone who assists a litigant in person (LIP) who is representing themselves in court. They are not just associated with the family courts, but they are also commonly found assisting with debt and housing. The role of McKenzie Friends is already important and the spotlight is most certainly going to shine brighter once we know the extent of the proposed changes in legal aid and McKenzie Friends will become more and more in demand and more necessary.

McKenzie Friends are also an important topic for Families Need Fathers (FNF). It is important that those who can’t afford legal representation can have the assistance of a McKenzie Friend. Many of those who come to us are often forced into the position of representing themselves in court because of financial reasons. There are also those who choose to represent themselves on matters of principle, as they want the money to be available for their children. We suggest that anybody who represents themselves has the support of a McKenzie Friend. FNF ourselves do not provide the services of McKenzie Friends, but we are glad that they do so much good work.

A McKenzie Friend can be somebody who holds the hand of a LIP during the actual hearing, taking notes and being there for general support. They could be a friend, a family member or someone who has volunteered. McKenzie Friends are increasingly providing a more advanced level of support. They can help the LIP prepare for the court case, providing support with preparing statements and helping put arguments together. They also attend the hearing(s) with the LIP.

Years ago, when you wanted the assistance of a McKenzie Friend, it could have been fairly difficult. That has changed and they are generally welcomed.

LJ Mumby in Re:N makes the point better than I could; 
 
…At the end of the day one has to remember that, as Lord Woolf CJ put it, “The overriding objective is that the courts should do justice.” And one also has to bear in mind, as he observed, the reality that legal aid is not available as readily as it was in the past, leading, as the President’s Guidance: McKenzie Friends [2008] 2 FLR 110 comments, to the growth of litigants in person in all levels of family court. Moreover, as the Guidance reminds us, “the attendance of a McKenzie friend will often be of advantage to the court in ensuring the litigant in person receives a fair hearing.” Similarly, in my experience, there will be occasions – sometimes; sometimes not – when the grant of rights of audience to a McKenzie friend will, to adopt the President’s words, be of advantage to the court in ensuring the litigant in person receives a fair hearing. Sometimes, indeed, it will be essential if justice is to be done and, equally importantly, perceived by the litigant in person as having been done.”

LJ Mumby’s comments are going to become even more important. The legal profession – judges, barristers and solicitors – is already saying that the number of LIPs is rising. With the country’s economic problems, including rising unemployment, and the imminent cuts in legal aid, it is hardly surprising.
Many judges will assist LIPs, but there is a concern that it can cause delay in hearings when proceedings have to be explained to LIPs. It can also mean that a case can be shorter overall, as a Judge is not faced with lawyers who might delay matters. We strongly believe, with the right support, either through information or through the support of a McKenzie Friend, delays and poor results can be reduced substantially. Judges generally welcome the family court experience of McKenzie Friends.

The issue of ‘professional’ McKenzie Friends is also a live one. Some McKenzie Friends do it full time and often provide a low-cost, quality service. From our experience it is because they want to provide support and not for financial gain that McKenzie Friends operate in the area of Family Justice. However you must be aware that there is no quality control or complaints procedure if you face problems. McKenzie friends appear in court as a result of a private arrangement between the parent and the advisor. Many McKenzies are voluntary workers. Either way, neither represents the charity.

Recently the President’s guidance has been revised on McKenzie Friends, which we believe could severely impact on allowing a fair hearing regarding the Rights Of Audience aspect, where a McKenzie Friend with the permission of the Court is allowed to speak for the LIP in Court. It is for the litigant to persuade the court that the circumstances of the case are such that it is in the interests of justice for the court to grant a lay person a right of audience or a right to conduct litigation. Given that the Litigant in Person is likely to have limited knowledge, how can they themselves be expected to adequately state their case that a McKenzie should have a right of audience?

It is clear that the Government plans to give a greater role for mediation, though not nearly as clear is if they will fund it properly. The legal profession is piling into this growing market. Will we see McKenzie mediators?

McKenzie Friends are most certainly here to stay, especially when legal aid is less available. So perhaps its time to really think about how we best support litigants in person, rather than putting our fingers in our ears and hoping it goes away.

Becky Jarvis
Director of Policy and Communications
Families Need Fathers
www.fnf.org.uk
Helpline: 0300 0300 363

We wonder what Family Solicitors and Mediators think about the role of McKenzie Friends, and how, in particular, their role may be improved?

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About onlydads

Single Dad living near Totnes in Devon. I founded www.onlydads.org in 2007 and live with my daughters Priya, 14 and Anya 11. I write about single parenting, work, overcoming trials and tribulations and sometimes not overcoming trials and tribulations.
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