In February, The Judiciary launched a consultation on the future of McKenzie Friends (not just in family law cases). The closing date for submissions is today (9th June 2016)
It included proposals to replace the term with ''court supporter'', to introduce more restrictive rules on the use of McKenzies, the introduction of a code of conduct, a plain language guide to McKenzies for the benefit of litigants and a prohibition on McKenzies from charging for their services or for expenses.
Wikivorce has now submitted its response to the Consultation based on members'' views, experiences and opinions. Thank you to everyone who contributed to this, the consultation was written by myself and Forseti. WE would appreciate your thoughts on the response.
Wikivorce is the world’s largest online divorce support community, with over 133,000 members. Wikivorce supports litigants via our website, community forum and free helpline. We receive around 1,000 calls per month, about half of which are from people considering self-representation because they cannot afford legal fees. Around a third of all callers do not have English as a first language, and a high number struggle with the technical language and terminology used by the justice system.
Wikivorce has surveyed its members and collated their responses in the preparation of these answers to the consultation questions. Wikivorce can only comment on the use of McKenzie Friends within family cases.
Going to court is a nerve-wracking, stressful and emotional experience. Going to court alone, with no support or help either with preparation or from someone quietly to support and advise the litigant during hearings amplifies that stress tenfold.
Even before the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2013 (LASPO) there was a gap between those who could afford the high costs of legal representation and those entitled to legal aid: many were forced to represent themselves, and after 2000 the use of McKenzie Friends became increasingly accepted by the courts.
Since LASPO and the consequent removal of legal aid from most family case, those facing divorce and, in particular, disputes over finances or arrangements for their children are finding that they have no alternative but to self-represent. By 2015 the proportion of cases involving at least one litigant-in-person had risen from 20% to 76%. mediation, instead of being the preferred option for dispute resolution as predicted by the Government, has declined, because litigants are no longer being referred by solicitors. With the recent announcement of the closure of 86 courts, the fall in the number of solicitors’ firms, the rise in court fees (34% on a divorce application), access to justice is slowly and surely being eroded.
Without the assistance of McKenzie Friends (fee-charging or otherwise), many people would be denied all access to justice, and would flounder in the archaic world of the family court. Many litigants do not have English as a first language, have learning difficulties, such as dyslexia, or poor written and oral skills, or simply do not have the funds to engage a solicitor; compare the new ‘living wage’ of £7.20 per hour with a solicitor’s typical hourly rate of £180 plus VAT.
Alternative resources are scarce: there are few books available for litigants, and to date only one which fully explains the jargon to litigants, The Family Law A to Z by Langford & Langford.
On the whole, McKenzie Friends do an excellent job in supporting and advising litigants, but the good ones tend to go unacknowledged, while the few rogue ones are paraded as examples of why it should be made illegal for McKenzie Friends to earn a living.
At Wikivorce we know only too well that, without the support of our services and our members, many litigants would not be able to navigate the family justice system and would have no other option but to walk away. We believe McKenzie Friends play an essential role in providing one-to-one support and document preparation before court and in offering reassurance and guidance in the court room, thereby allowing litigants fully to access the family justice system.
There will always be a need for the services solicitors and barristers provide, but there is also an increasing need for the vital services offered by professional McKenzie Friends and thus an opportunity for new paralegal firms and fee-charging McKenzies. Most of those who use these services do so because they simply can’t afford the high rates solicitors charge, so it is improbable that McKenzies take work away from solicitors.
Wikivorce would argue that an experienced, knowledgeable McKenzie Friend assisting a litigant actually aids the solicitor acting for the other side, for example, by preventing lengthy delays in dealing with and returning communications.
Question 1: Do you agree that the term ‘McKenzie Friend’ should be replaced by a term that is more readily understandable and properly reflects the role in question? Please give your reasons for your answer.
Respondents were divided on this question. Some agreed that a clearer, self-explanatory term should replace the term ‘McKenzie Friend’.
We suspect, however, that attempting to replace a term so well-established in case law is probably futile and could prove confusing to inexperienced litigants researching their cases. We don’t think that the Consultation’s comparison with relatively obscure terms like ‘Anton Piller Order’ or ‘Mareva Injunction’ is appropriate, and would rather suggest that an analogy with more familiar terms such as ‘Mesher Order’ or ‘Scott Schedule’ is more apt. The law is full of terms borrowed from specific cases and we doubt that is likely to change.
Efforts in 2007 to eliminate terms like ‘ancillary relief’ or ‘Decree Nisi’ failed, with users reverting after a short time to the old terms; we feel that it doesn’t really matter what McKenzies are called and that effort may be more profitably applied elsewhere.
Question 2: Do you agree that the term ‘court supporter’ should replace McKenzie Friend? If not, what other term would you suggest? Please give your reasons for your answer.
For the reasons given above, we believe that the term ‘McKenzie Friend’ is likely to endure and that replacing it should not be a priority.
Wikivorce feel that the proposed term ‘court supporter’ is misleading – a McKenzie Friend is not present to support the court, but to support the litigant. In Scotland, McKenzie Friends are known as ‘lay advisers’ and, while this is a better option, it does not reflect the experience or any legal qualifications the individual may have.
If fee-charging McKenzie Friends are to become a profession in their own right by, for example, becoming members of a professional body, being listed on a register of professional McKenzie Friends, or taking specific qualifications, then this needs to be adequately reflected in the term used to describe them. One proposed term is ‘Lay Lawyer’; we would also propose that non-fee-charging McKenzie Friends – i.e., those who attend court with a litigant merely for moral support – be known as ‘Litigant Supporter’. These two different terms would then differentiate clearly between fee-charging professionals and those who are there purely to offer encouragement.
Question 3: Do you agree that the present Practice Guidance should be replaced with rules of court? Please give your reasons for your answer. Please also give any specific comments on the draft rules in Annex A.
Wikivorce agree that upgrading the current Practice Guidance to rules of court would eliminate much confusion over the role of McKenzie Friends both for litigants and for the courts.
Rule 3.22(2) We believe that the default position in private proceedings should be that a litigant may be assisted by a McKenzie friend unless the court directs otherwise – this seems to be the position adopted by most judges but needs to be formalised. Exceptions would be the exclusion of a particular McKenzie or for particular proceedings – for example, those involving very sensitive details (as under Rule 3.22(6)).
Rule 3.22(3) We support the introduction of an application form so that if a litigant is refused the use of a McKenzie he or she can access alternative support or representation.
Rule 3.22(4) We agree with this provision (despite the clumsy wording of paragraph (ii)) but suggest the incorporation of a suitable template into the application form.
Rule 3.22(7) We understand that McKenzies are not always clear on the rules regarding the practice of reserved activities; however, McKenzies will have already agreed terms and fees with a litigant before attending court and will not necessarily know whether they are to be granted right of audience until the hearing itself. We believe, therefore, that a McKenzie should still be able to be remunerated for the time spent in court, but should not be able to charge additional fees if the right of audience or the right to conduct litigation is granted.
Rule 3.22(8) It is unclear whether the ‘individual’ referred to is the litigant or the McKenzie, and unclear why this rule is necessary.
Rule 3.22(13) Generally costs orders are not made in family proceedings, but we believe in the interests of equality of arms that a litigant should be able to claim the costs of their McKenzie Friend where appropriate. This proposal is not consistent with the consultation’s proposal that McKenzies should also be ‘officers of the court’. If an MF is to be so regarded then he or she must be able to charge, to have professional indemnity insurance and to sign up to a code of conduct.
Rule 3.22(14) We believe that, where a litigant is supported merely by a friend who is giving moral support and taking notes, that individual should not be regarded as an officer of the court. Where, however, the McKenzie is ‘professional’ and charging a fee, then they should be, and should have professional indemnity insurance and membership of a representative body.
Rule 3.23(3) We support the ability of a litigant to apply for their McKenzie to be able to conduct litigation or be granted right of audience in a particular hearing where it is in the interests of justice. It would be helpful for the judiciary to set out a clearly worded definition of what conduct of litigation involves.
Rule 3.23(5) Again we would suggest that the application form should incorporate a template to assist the litigant and so that the court may receive this information in a uniform format. The rules should provide for situations where right of audience can be granted on the day at the judge’s discretion and without the application form where, for example, a litigant breaks down in court or is for some other reason but without notice unable to address the court themselves.
Rule 3.23(6) See our response to Rule 3.22(7) above; McKenzies should not be able to charge extra for reserved activities. This should ensure the use of McKenzies to further the interests of justice and discourage right of audience applications merely for financial gain.
Rules 3.23(7) to (10) We support these proposals.
Rule 3.23(11) See our responses to Rules 3.22(7) and 3.23(6).
Rules 3.23(12) and (13) We agree with these proposals but repeat the necessity of a clear definition of the conduct of litigation.
We feel that generally the proposed rules are not drafted particularly well and are in places repetitive; they need to be written more clearly and simply so that litigants may more easily comprehend and follow them.
Question 4: Should different approaches to the grant of a right of audience apply in family proceedings and civil proceedings? Please give your reasons for your answer and outline the test that you believe should be applicable. Please also give any specific comments on the draft rules.
The circumstances in which the granting of right of audience is appropriate are already set out in the practice direction on McKenzie Friends and we would suggest a more detailed list of circumstances.
For our views on the draft rules, see above.
Question 5: Do you agree that a standard form notice, signed and verified by both the LiP and McKenzie Friend, should be used to ensure that sufficient information is given to the court regarding a McKenzie Friend? Please give your reasons for your answer.
Yes, we agree with this proposal which should avoid possible confusion. We suggest that a suitable template be incorporated into the application form so that the court has access to this information in a uniform format. For fee-charging McKenzies it should include details of qualifications, professional membership and professional indemnity insurance.
Question 6: Do you agree that such a notice should contain a Code of Conduct for McKenzie Friends, which the McKenzie Friend should verify that they understand and agree to abide by? Please give your reasons for your answer.
Yes; this should be particularly beneficial for inexperienced and non-professional McKenzies so that there is no confusion regarding the rules surrounding disclosure or the practice of reserved activities. We would recommend that care is taken to express such a Code of Conduct in plain English.
Question 7: Irrespective of whether the Practice Guidance (2010) is to be revised or replaced by rules of court, do you agree that a Plain Language Guide for LiPs and McKenzie Friends be produced? Please give your reasons for your answer.
This is an excellent idea: a well-written, plain English guide for both litigants and McKenzie Friends, especially for the occasional McKenzie Friend, or the family friend who attends court to offer moral support would be immensely helpful. The Family Law A to Z provides an excellent glossary of legal terms and definitions, as well as being an essential reference guide and, in the current absence of any guide, is the next best thing.
Question 8: If a Plain Language Guide is produced, do you agree that a non-judicial body with expertise in drafting such Guides should produce it? Please give your reasons for your answer.
Yes; any such guidance needs to be written in a way that is easily understood both by litigants and their supporters, and we would suggest establishing a small working party of litigants, McKenzies and legal advisors to carry out this task. Wikivorce would be very happy to contribute to this project. The same taskforce could also look at the proposed new forms and existing ones, which some respondents have criticised for their complexity. Input from a body such as the Plain English Campaign might also be beneficial.
The guide should be produced in a range of languages to reflect the growing need for family litigation amongst the population for whom English is not their first language.
Question 9: Do you agree that codified rules should contain a prohibition on fee recovery, either by way of disbursement or other form of remuneration? Please give your reasons for your answer.
We strongly oppose this proposal. No McKenzie Friend can afford to spend the necessary amount of time with each litigant, advising, helping with court preparation, attending whole days in court, etc., without being able to charge a modest fee for their time and expertise.
To ban fee-charging McKenzie Friends and ban even the recovery of expenses would be calamitous for litigants, especially for those who have no other source of support or advice upon which to rely. Ending fee charging would be to end the availability of McKenzie Friends with any experience, expertise or knowledge of the law.
It would deny access to advice, to support or to justice to those litigants who don’t have English as a first language, who have dyslexia, who struggle with the archaic legal terminology, who have been victims of domestic abuse or of false allegations, or who are just overwhelmed by the complexity and stress of family proceedings.
The result would be to oblige judges to advise on basic procedure and form-filling, further wasting valuable and scarce court time.
Question 10: Are there any other points arising from this consultation that you would like to put forward for consideration? Please give your reasons for your answer.
Wikivorce propose the adoption of a two tier approach to McKenzie Friends.
The lower tier would be made up of litigant supporters: the friends and family members who go to court with litigants to provide moral support and to take notes. They would be able to enter a private arrangement to recover travel and parking expenses, but they would not be officers of the court, and would not be able to apply for the right of audience or to conduct litigation. Domestic violence workers, Public Support Unit and other agency volunteers who attend court with a litigant would fall into this category.
The second tier would be made up of ‘professional’ McKenzie Friends. They would be required to have professional indemnity insurance, to demonstrate a relevant legal qualification such as a paralegal qualification or a specialised McKenzie Friend qualification, and to have membership of a professional body such as the Institute of Paralegals.
Wikivorce understand that the Institute of Paralegals (IoP) intends to run a future project whereby it will become the recognised membership body for McKenzie Friends. This would mean that McKenzies would be granted practicing certificates, be graded according to their qualifications and years of experience, be required to abide by a code of conduct set out by the IoP and have access to a wealth of support and experience from the IoP and its members.
We would like to see a specific register for McKenzie Friends, as distinct from paralegals. It would detail areas of expertise, and list experience, relevant legal qualifications, fees, and so on. Such a register would enable litigants to source the most appropriate McKenzie Friend for them and their case; knowing that the information is up-to-date and the McKenzie Friend is a member of a professional body so that, should there be any issues about the service received, a formal complaint can be raised with the IoP. To be clear, the IoP is not a regulatory body, but a professional membership body, and has no powers to compel action to be taken or to award compensation. It can, however, discipline members and advise clients on how to complain and to whom.
The issue of the proposed code of conduct would also be resolved by enabling McKenzie Friends to join a recognised professional body, as the IoP already has an extensive code of conduct for paralegals, and this could provide the basis of a version specifically adapted to McKenzie Friends.
For those wishing to be known as professional McKenzie Friends – i.e., fee-charging –there is scope for Central Law Training or the National Association of Licensed Paralegals to offer tailored training courses and qualifications. They already provide a wide range of paralegal qualifications which give the successful student a professional legal qualification which is widely recognised. A similar qualification for McKenzie Friends would furnish them with a high level of professionalism which is currently not available. All this would protect both the McKenzie Friend and the litigant.