McKenzie Friend denied appeal
June 29, 2017 4 comments
A fee-charging McKenzie Friend has been told he cannot appeal against his exclusion from a family court dispute.
McKenzie Friends are informal courtroom advisors favoured by some litigants unable to afford legal representation. Many, as in this case, work on a paid basis.
The McKenzie Friend in question had been chosen by a mother in a dispute with the father of her two daughters, aged 11 and 14. He wanted to see them more frequently but she opposed this. A district judge ruled that the children should remain with their mother on welfare grounds. In the East London Family Court, Her Honour Judge Carol Atkinson excluded the McKenzie Friend from any further involvement in the proceedings.
In a newly published judgement she has now explained her reasons. The case had been a convoluted one, involving three different children’s services departments. The sisters are now represented by a solicitor but neither parent is entitled to legal aid and both have been litigants in person throughout the proceedings.
The McKenzie Friend became actively involved in the case, talking to the various parties for her. Judge Atkinson explained:
“These communications have variously been by letter, by email and by telephone conversation and have been on the basis that he is “acting” or speaking on behalf of M – in other words, he is communicating her wishes and intentions. There is rarely any communication from mother herself.”
The father eventually objected to his involvement, saying he thought the man was “acting outside the boundaries imposed upon him”. He argued that his influence had been detrimental to the case and that his involvement in it should be brought to an end.
A judge discovered that the Friend had been wrongly recorded in the court record as ‘acting’ for the mother in a solicitor’s capacity.
The case continued in a complex series of hearings. Eventually the McKenzie Friend was removed from the case and both he and the mother appealed.
In her ruling Judge Atkinson was critical of the fact that the man had described his role as “quasi-solicitorial”. She explained:
“There is no such thing as ‘almost’ a solicitor. You are either a solicitor or you are not.”
The Judge added:
“Significantly, if you are, you are bound by your professional duties and you are externally regulated.”
The Friend in this case had been operating under a “fundamental misunderstanding” of the nature of the role she declared, highlighting a series of emails sent by the Friend to the father despite complaints by the father that they amounted to harassment.
In one exchange the Friend had taken the opportunity to
“…lecture the father on what he describes as the father’s “puerile habit” of barging into him at court, advising him that he may find his time is “better spent in contemplation of the situation that you have placed yourself and the children in…” and that his behaviour is “reminiscent of the school playground”.”
The Judge described these as “unpleasant exchanges” and she noted that the man had nevertheless
“…relied upon by [them] to demonstrate that [the father] was communicating with him whilst failing to see how inappropriate they are.”
A solicitor who had used such language would had have been strongly criticised. On another occasion, she continued, the Friend made made an “utterly inconceivable” request to alter crucial case documents before these were given to the Judge.
“[The man’s] behaviour in this case goes so far beyond the limits for so long and in circumstances in which he simply fails to understand what he has done wrong.”
“If “professional McKenzie friends” are to assist parents in such emotionally fraught cases they must be sensitive to these issues and mindful of the dangers of becoming an irritant hindering the process rather than giving the assistance that the courts have been used to in the past’.”
But, she added:
“Nothing in this Judgment is to be taken as intended to undermine the value to the courts of third parties who offer support and assistance to litigants in family proceedings.”
Read the ruling here.
June 29, 2017
Categories: Family Law