In the 1970s an Australian barrister with no rights of audience in England sought to represent a party in divorce case McKenzie v McKenzie. The Court of Appeal ruled that the trial judge’s refusal to allow him to take an active part in proceedings deprived one of the McKenzies of rightful assistance they were entitled to. A re-trial was ordered. “McKenzie Friends” were born: non-lawyers who appear as advocates on behalf of Litigants in Person or LiPs.
Even the informality of the term is indicative of their questionability. But it seems like they are here to stay – the Judicial Executive Board has proposed reforms to their status quo after a recent rise in demand for McKenzie friends (no doubt caused by Legal Aid cuts) and serious questions about their usefulness in court. If all goes according to plan, the Practice Guidance on McKenzie Friends is about to be updated, from rules of court to a prospective Code of Conduct.
What is probably the more urgent update here, however, is that having a McKenzie Friend represent a divorcee in a family court might not exactly be a good idea. Aptly phrased by legal correspondent Clive Coleman:
“If you were in the desperate position of needing brain surgery, would you be content for someone with no medical training, but who had seen quite a few brain operations, to carry out yours?”
Granted, it is not literally life or death circumstances in the scenario of a divorce process – but when it comes to your financial future, time spent with your children or even whether they continue to live with you or not, it really can feel like life or death. A great many Family Court cases are very much life-defining situations – one with inherent implications on family relations until death. From that perspective, a stranger with no proper qualifications, no insurance and no membership in a regulated body suddenly becomes way less attractive.
Even if their role is to simply sit next to you in court, take notes, provide moral support and suggest questions in cross-examination, it is difficult to imagine any self-regarding individual be willing to find themselves in those shoes without hesitation. But when times are hard – in terms of both economic and emotional vulnerability – a cheap and accessible McKenzie Friend may be tempting. Do we really want them to become part of the family law landscape, though? Is it healthy for the civil justice system to witness a shift from relatives and family friends to these professional McKenzie Friends? Inevitably they will overstep boundaries and play solicitor. They cannot sign documents, but they are permitted to draft them. It is important to be cautious of how far your Friend can support you and how far they can actually act for you.
In the field of advertising, one of the most widely used tactics is the appeal to a consumer’s innermost state: fears, hopes and aspirations. A number of well- respected judges are conscious of the potential for exploitation: Mrs Justice Simler warned lay advisers that if they do opt to offer help, they are confronted with the risk of financial penalties if their case is lost. Although that makes sense as an attempt at incentivising genuine aid, it makes little sense to choose a McKenzie Friend over a more reliable, more knowledgeable and more educated solicitor. Bear in mind that is it not simply the outcome of a case that is of concern here. Confidential information and private data are entrusted to someone else! On top of this, solicitors have years of training and are supervised and regulated by not one, but two official bodies, the Solicitors Regulation Authority and the Law Society (no one supervises McKenzie Friends). Solicitors have to undergo six years of formal, supervised training: McKenzie Friends usually have none. And even more crucially, solicitors have insurance – McKenzie Friends don’t – and if something goes wrong they are liable to their client. Even if that insurance should fail to meet the financial needs of the client, the regulatory bodies mentioned above have a compensation scheme to ensure no member of the public is out of pocket.
So what’s the lesson to learn? Keep your McKenzie Friends close, but keep your credible divorce solicitors closer.
After all, more often than not, all is not what it seems. Or what feels too good to be true, usually ends up so. McKenzie Friends are framed to appear to further the interests of justice, but it is highly unlikely that the administration of such could ever be as comparably bona fide and efficient as a solicitor’s. In the words of Lord Donaldson of Lymington MR: Let the “McKenzie Friend” join the “Pitdown Man” in decent obscurity.