What is a McKenzie friend in family law proceedings?

With Legal Aid becoming more difficult to obtain and the cost of legal services being too high for some, more people are conducting their own Family Law cases in court. Anyone involved in a family law case is entitled to represent themselves and they can also be accompanied by someone who can give them reasonable assistance. This person is called a McKenzie friend.  Sam Miles, Family Partner, here explains what a McKenzie friend is and, while able to lend support during an emotional time, why having a solicitor is of paramount importance.

There are no limitations on who the McKenzie friend can be, just that they are a ‘lay person’.  They can take notes, make suggestions and give some advice to the litigant. They cannot address the court; this is not an automatic right and a judge can refuse to allow someone’s McKenzie friend. They can refuse for a number of reasons including, potential improper use, conducting litigation or not understanding confidentiality.

Whilst having a McKenzie friend can be comforting for an unrepresented party, it is really no substitute for having a properly qualified solicitor and comes with some major risks, such as:-

• They are unregulated.
• Many will not have professional indemnity insurance.
• Potential for poor quality or simply wrong advice due to non-qualified practitioners.
• Variable fee rates.
• Can be agenda-driven.

With regard to this last risk, a recent article in the Law Society Gazette, “Relentless and obstinate McKenzie friend allowed to be advocate” (John Hyde 16 September 2016), it refers to the high court allowing a McKenzie friend to litigate despite accusations that he was ‘hijacking the case to pursue his own agenda’. Moore, the McKenzie friend in question had previously represented himself in a case against the same respondent which had ended up in the Court of Appeal. The respondent had argued that Moore ‘changed the complexion’ of the case in attempt to litigate general issues. The judge ruled that it would be unfair for the claimant to find a different McKenzie friend to assist him at this point and that Moore had shown to be ‘measured and helpful’ despite showing a ‘tendency towards prolixity and a kitchen sink approach’.

The rise in the number of ‘professional’ McKenzie friends could mean greater potential for the more vulnerable litigants to be exploited.

The Bar Council has, this year, commissioned an independent research team to look into the role of the professional McKenzie friends in family courts. This research aims to look into the client experience of instructing a McKenzie friend. The Judicial Executive Board had already this year issued a consultation paper proposing reform to the existing guidance for McKenzie Friends. The proposals in the consultation paper include, changing the term ‘McKenzie friends’ to ‘court supporter’, creating a code of conduct for McKenzie friends to abide by in order to acknowledge a duty of confidentiality and also a prohibition on fee recovery by the paid McKenzie friends. The consultation period for this paper has ended and the outcome is awaited.

If you’re going through a divorce or separation, or you’re looking for assistance with arrangements for your children, then coming to a qualified solicitor is an important first step to take.  Here at Warner Goodman LLP, we have years of experience offering sympathetic and practical advice with your best interests at heart.  We also have two qualified family mediators who can take you through the steps of resolving your disagreements, whether that be financial or children related following a divorce, without ending up in Court; a step that could save you time, money and emotional anguish.

To book your appointment today, call 02380 717431 or email familyenquiries@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.