Sorting out the McKenzie friend problem isn’t rocket science

McKenzie friends

The issue of McKenzie friends, particularly of the fee-charging variety, continues to cause much wringing of hands amongst the legal profession. But isn’t the answer to the problem really quite simple?

The latest manifestation of paw-squeezing comes from the Bar Council, which has just published research into fee-charging McKenzie friends            and their work in private family law cases, undertaken on its behalf by the Universities of Cardiff and Bristol. Unfortunately, as has been pointed out elsewhere, the research is not as useful as it might have been, being limited just to fee-charging McKenzie friends, and also concentrating on the role played by paid McKenzie friends in court, rather than their role as providers of legal advice.

Leaving that point aside, the key findings of the research included that the McKenzie friends who were interviewed as part of the research fell into five categories (more of which in a moment); that their business practices (training, insurance, etc.) varied; that they generally charged less than lawyers; that their clients were mostly very happy with them; and that some of them showed evidence of questionable judgements or demonstrated misunderstandings related to law or procedure.

As to the five categories of McKenzie friends, these were: the ‘business opportunist’, who was in it to make money; the ‘redirected specialist’, i.e. former lawyers; the ‘good Samaritan’, who claimed to be motivated by concern for the welfare of the client; the ‘family justice crusader’, who needs no introduction from me; and the ‘rogue’, i.e. the charlatan, who was just in it to make a quick buck, with no regard for providing a proper service.

None of these findings should come as a surprise. I suppose the only finding that some might not have expected (and that may concern many lawyers) is the finding that clients of McKenzie friends were mostly very happy with them. However, there are obvious reasons why this would be so, including that McKenzie friends are likely to seem less aloof than lawyers (who understand the need to remain impartial); that they are more likely to tell their clients what they want to hear; and that they are more readily available to their clients than most lawyers (although some McKenzie friends did acknowledge that they sometimes found themselves in difficult, potentially risky situations as a result of client demands or behaviour).

The report doesn’t really come to any concrete conclusions, sitting on the fence of ‘some McKenzie friends are good, some aren’t’. It also falls into the trap of saying that they provide a useful service – for those who can’t afford a lawyer. But that entirely misses the point.

As I’m sure I’ve said here before, the crux of the matter is very simple: either the public require protection, or they don’t. Either those providing legal assistance to the public need to be trained to a high standard, properly regulated and insured, or they don’t. And if they don’t, then the public should be made aware of the difference, as I will explain in a moment. If they are to be regulated then logic suggests that it should be to the same level as lawyers. After all, if it is considered that the public require lawyers to be heavily trained, regulated and insured, then why should it be any different for any other providers of legal assistance? Of course, if McKenzie friends are subject to the same regulation, then they become lawyers themselves, and the problem goes away.

If, on the other hand, the public are to have a choice between regulated and unregulated providers of legal assistance, then it should be an informed choice. They should know what they are getting themselves into, and the risks they are taking. They should know that the McKenzie friend they are instructing may or may not know what he or she is doing, that they are not subject to any sort of regulation, and that they are not required to be fully insured, in case things go wrong. There should at least be a requirement that McKenzie friends provide this information at the outset.

Of course the elephant in the room is legal aid, or rather the lack of it. McKenzie friends did of course exist prior to the abolition of legal aid for most private law family matters, but at least then those who could not afford to pay for a lawyer did not have their choice dictated to them by financial considerations – there was (theoretically at least) no such thing as someone who could not afford a lawyer.

The Bar Council report can be found here, and an Executive Summary here.

Photo by Felix O via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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9 comments

Paul Apreda - June 14, 2017 at 9:18pm

May I say what a lovely picture of a child’s climbing frame! There is a park in my village with a frame not dissimilar and my kids used to love to play on that. Do you know whether the manufacturer is still going as I’d like to suggest that when the park is refurbished the Parish Council looks to find something like this to stimulate young minds 😉 Thanks for sharing…….

JamesB - June 15, 2017 at 10:43am

I remember these also. Seems now they are replaced with rope like things for fear of being sued.

I also agree is a much better discussion and subject then denigrating McKenzie friends or litigants in person.

All for climbing walls in the park. Also local to me they replaced the climbing frame with two big poles with steps on which no one uses. Roundabouts seem to be going also.

As a non resident father, and now as a father again I have spent many many years in parks and they are getting worse, not better, and should be the other way around.

Paul - June 15, 2017 at 12:19am

Disagree with almost everything said in here. Solictors are mercinaries. They are purly self interested. The courts and solicitors try to undermine people to get a fast result and easy pay day. In my experience, they are lazy they cut corners. They have too closer relationship with the courtiers and judges and the results are largely agreed between themselves before any evidence is heard. If they can squeeze you for more coin they will. Results are dictated by what solicitors are been paid. This all amounts to ‘litigants in person’ been swindled. A Mckenzie friend can at least observe that procedure is followed. At least ensure the law is followed ‘vaguely’ to the letter. If clients are happy with Mckenzie friends influance then you have very little to moan about. Think you should be asking why people are not happier with a qualified legal professionals ? – The reality is people know solicitors are pricy what people are deciding is that they are simply not worth the money they ask. Im sure also that was in David Camerons thinking when he scrapped legal aid. The money charged service provided do not represent value for money. Its a con. The bottom line is you charge too much. Legal aid is purely a way to use an open cheque book to claim what you like off the tax payer. It always was morally questionable. The only way I would support legal aid been reintroduced is on a results based basis. If you are successful in court as a solicitor then the award of legal aid would be accepted. No win no fee. At least then we would not be paying for solicitors to stitch their clients up. They would have to perform.
Whats happening at the moment pretty much equates to industrial action by solicitors. Your ruling against the unrepressented or the cheaply repressented deliberatly to support solicitors and legal tradesmen. Incriminating/ruling against vast numbers in the proccess storing a problem for ministers. This is appauling. What your also doing is damaging the reputation of our court and legal system.
You will not accept the format has changed and are digging your heels in until solicitors benefits(legal aid) is restored.
In family court by far the best way to get a fair representation for all is to abolish legal advisers and make judgements based on facts and the statements of people involved. Less advaserial the better where family is concerned.
You need to be prepared to price your self competatively.

Philip Kedge - June 15, 2017 at 9:16am

The other elephant in the room is that quite simply family law does not need lawyers. This is an absolute statement of fact as thousands of people turn successfully to self litigation saving themselves £20,000 + even on the most straight forward of cases.

People are voting with their feet and wallets and as the trend continues exponentially, lawyers will go the same way as the dinosaurs. This is no bad thing.

It is false to consider that the main issue is legal aid as the root cause of the trend. The vast majority of my clients are from middle class families of £30,000+ income with significant assets in their property who reject the extortionate fees of lawyers and who also reject the continual cycle of conflict that lawyers keep their clients in for financial gain.

Philip Kedge
The McKenzie Friend UK Network.

Vincent McGovern - June 15, 2017 at 10:50am

I always find great comedy value in John Bolch’s almost constant negative portrayal of McKenzie friends versus his hero worship of lawyers and their alleged impartial professionalism, properly insured, regulated and trained etc. Some of the the most unprofessional behaviour, at times criminal that I have ever encountered is by lawyers. This semi criminal behaviour is well protected usually by their colleagues who are Judges and from the same culture. Protection of the system first, including the income stream is far too often lawyers understanding of the paramountcy principle.

A major handicap in family law is lawyer malpractice, the sooner they are forced out from the vast majority of family courts the better. Let them earn their living from the wealthy fools with more money than sense, the natural place for legal mercenaries.

Wishtytaraglia - June 15, 2017 at 11:41am

Dear John,

The Research in complete contrast to your headline states that Fee Charging McKenzie Friends are helpful to parents in the family courts generally.

Please read the report carefully and understand the conclusions that Fee Charging McKenzie Friends are ‘not’ a problem.

I hope this helps.

Peter Davies - June 15, 2017 at 12:54pm

I agree with John that choices should be informed.

However, taking John’s experienced advise, unless one is lucky enough to be sufficiently well healed to pay for the services of an experienced solicitor with an established track record one has little or no option other than to stick ones hand in the bran tub and take pot luck at the budget end of the scale. For low to middle earners the choices are very limited. At one extreme you could end up with someone that took a family law module, possibly supplemented by a dissertation on a related topic, for their qualifying degree or conversion course and followed this up with relevant experience during their legal practice course. They may also have accrued some hands-on experience during their training contract. At the other extreme the qualifying degree and LPC might have included little or no family law content, and the training contract could have been equally bereft of appropriate subject matter. In other words, it’s quite possible that the picture of ‘highly trained’ professionalism painted by John is highly misleading.

On the other hand, the professional McKenzie, as the report infers, is likely to have a string of satisfied customers that can vouch for their effectiveness and provide appropriate references. Someone that has been through the mill is often a more attractive proposition to a client that has struggled to see their children, and been let down by mediation, than a fresh faced rookie solicitor that has yet to suffer many life experiences and is only a few years away from being a possible subject of a child arrangements order themselves.

It can also be an advantage knowing that the person you are paying has a duty and is committed to advising you and not primarily obliged to advise the court.

I’m sure that John remembers the Consortium for Shared Parenting that was instrumental in thwarting the introduction of a presumption in favour of shared parenting into the Children and Families Act 2014. It included the family lawyers group Resolution (besides representatives of just about every other organisation with a vested interest in the industry). I’m sure that John will also recall that, in spite of the misleading name, the consortium was anything but supportive of the presumption in favour of shared parenting.

I wonder how many parents seeking shared parenting look for the resolution sticker in a solicitors window, get a nice warm feeling from terms like ‘collaborative’, ‘constructive resolution’, ‘non-confrontational approach,’ and feel gently lulled and swaddled by their code of practice only to discover later that they have been hoodwinked into engaging a legal representative who is not only ideologically opposed to the very thing they are trying to achieve but agreed to and funded their trade organisation vehemently opposing it becoming law.

I wholeheartedly agree with John that choices should always be educated and informed.

Rob Cheyne - June 15, 2017 at 6:19pm

I used “lawyers” in my divorce – what an expensive farce. I’ve been to court as an unpaid mckenzie and I am shocked at the overall quality of the lawyers – the majority of whom fail to act in the best interest of the child/ren. Will say and do anything to drag the case including failing to provide statements, court bundles and evidence in time, knowingly representing lies and defending indefensible, child damaging behaviour. Whenever challenged about this they lie and plead ignorance. In education, housing, finance and local authorities I’ve never met a bunch of woeful professionals.

What’s being done about the useless family lawyers?

JamesB - June 18, 2017 at 10:59pm

Re I wonder how many parents seeking shared parenting look for the resolution sticker in a solicitors window, get a nice warm feeling from terms like ‘collaborative’, ‘constructive resolution’, ‘non-confrontational approach,’ and feel gently lulled and swaddled by their code of practice only to discover later that they have been hoodwinked into engaging a legal representative who is not only ideologically opposed to the very thing they are trying to achieve but agreed to and funded their trade organisation vehemently opposing it becoming law.
Probably most.
I have often seen those stickers and thought of the lawyers behind the window s whom I know to be confrontational. Never known a lawyer be chucked out of resolution, let alone be checked out for being too confrontational or bad or something.

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