An interesting debate has been hotting up over the last few weeks on the topic of fee-charging McKenzie friends in cases like divorce. It came after watchdog the Legal Services Consumer Panel published a report (PDF copy of the report here) which calls for McKenzie Friends to be recognised as increasing access to justice and a “legitimate feature of the modern legal market” helping to offset Legal Aid cuts.
What is a McKenzie Friend?
For those who may not know, traditionally McKenzie Friends are unqualified volunteers who help litigants in person at court, taking notes, preparing documents and giving basic prompts on points to make or court procedure. With more Iitigants in person these days as a result of Legal Aid being removed and a perception that proper legal representation will be prohibitively expensive, they are more in demand now than ever, as you may imagine. Increasingly, they are charging for their time, anything between £15 and £89 an hour, though few have any legal training or liability insurance, and there is no code of practice.
So they had been seen as a benign helper for the person representing themselves in a divorce case but the game is changing – and not for the better.
For a start, if someone is charging £89 per hour you would expect them to really add value rather than simply adding cost. Yes, they can be useful support on the day and give guidance but they are not legal counsel. In most cases they will be giving information about legal process and should never be giving legal advice as they are not qualified to do so.
Some people will go to a McKenzie Friend if they have at first consulted a lawyer but not liked the realistic outlook and options presented to them. The McKenzie Friend then becomes a complicit supporter of whatever point the client wishes to fight on. They are not allowed to express an opinion but by allowing the client to push ahead, they are giving the impression that the course is a true one, potentially leading to unrealistic expectations.
Judges do prefer lawyers but many would rather take a litigant in person with a McKenzie Friend than without one because they can help speed up proceedings. You might be surprised to learn that McKenzie Friends could be people with no legal knowledge at all, they may be law students looking to gain experience in court or even struck off lawyers – there is no register or code of practice to regulate who is involved which can lead to clients being left worse off.
There is guidance in terms of how they are to behave in court and the extent of their ‘powers’ beyond a court hearing. McKenzie Friends (Civil and Family Courts) Practice Guidance  2 FLR 962 clearly states:
"4) MFs may not i) act as the litigants' agent in relation to the proceedings; ii) manage litigants' cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses."
They can be helpful to the court by assisting a litigant in person but it is when someone who is not familiar with the role, and the guidance, that things can go wrong. They may well become more popular in divorce cases as Legal Aid has all but ceased but they are certainly not the answer to the situation. People instructing them need to have full knowledge of what they can and cannot do before engaging them, but the best advice is to get professional advice from a qualified family law expert.