McKenzie Friends Consultation – the Response of the CPR site

In February 2016 the Lord Chief Justice issued a consultation paper about the court’s approach to McKenzie Friends. Responses are required by May 29th. This post sets out the response from the CPR site and is written by Sarah Phillimore.

The Consultation sets out an explanation of what is a McKenzie Friend (MKF) and what previous guidance there has been from the courts about how to deal with them.  A MKF is someone who assists a litigant in person [LiP] in respect of legal proceedings. They are generally not qualified lawyers and got their name from the case of McKenzie v McKenzie [1970] 3 WLR 472. They are usually allowed to help LiPs but it is at the court’s discretion and the LiP will have to seek the court’s permission if involved in cases concerning children, which are not usually held in open court.

The strict definition of a MKF applies only to to someone providing a LiP with ‘reasonable assistance’ (moral support, taking notes etc) but it is also often used to describe individuals who are granted rights of audience on a case by case basis. Thus the terminology is potentially unclear.

Guidance was issued in 2004, 2008 and in 2010 about MKFs. There has since been a rise in  both the numbers of LiPs, in response to cuts to legal aid funding, and an increase in the number of MKF who were offering services for a fee – commonly known as ‘Professional McKenzie Friends’. Therefore there is a need for current guidance to be re-visited.

For further information about MKF and what other options are available to LiPs see this post ‘ What if I don’t have a Lawyer?

The Consultation is limited to three issues:

• Codifying in the Civil and Family Procedure Rules the practice and procedure relating to MKF;
• Issuing further guidance to maximise the positive benefits and minimise the negative effects MKF bring to the administration of justice;
• Replacing the term ‘MKF’.

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?

I accept that terms should be used that are clear and precise and the current terminology is not fit for that purpose.

Question 2: Do you agree that the term ‘court supporter’ should replace MKF. If not, what other term would you suggest?

The suggested replacement of ‘court supporter’ is neither clear nor precise.  It implies that the support is being given to the court, not the LiP. ‘Lay assistant’ or ‘litigant supporter’ is better as it puts the focus on what the MKF is supposed to be doing – assisting the LiP.

 

Primary Danger – MKF who have axes to grind or who just don’t understand what they are supposed to be doing.

Questions 3 – 8 appear to be directed at what I believe is the primary danger posed by ‘rogue’ MKF – namely, the lack of regulation and the corresponding lack of information/publicity about those who are dangerous.

Question 3: Do you agree that the present Practice Guidance should be replaced with rules of court?

Yes. And predominantly for the reason set out at 4.10(iii) of the Consultation. Rules of court would:

provide great clarity concerning the courts’ powers to refuse to permit individuals to act as MKF, to continue to act as such where they are providing poor quality assistance, or to bar them from acting as such in the future in order to provide better protection for LiPs and to better protect the due administration of justice.

This goes to the heart of concerns expressed about MKF by me via the CPR site. There is a small but significant group of people who purport to be MKF but who act in ways that are extremely damaging to the LiPs interest in family court proceedings. This is largely due to the belief expressed by these individuals that the family justice system is corrupt and, for example, operates according to ‘targets’ to steal children from loving families. [For further discussion of that issue, see our post on ‘Forced Adoption’]

These individuals not only cause distress and damage to the individuals unlucky enough to receive their assistance, cause public money and court time to be wasted, but also have a much wider and chilling impact on public confidence in the system due to their additional activities of campaigning, both on the street and via the internet.

For example, note the hearing in February 2016 reported in the Law Society Gazette that Sabine McNeill and Belinda McKenzie avoided incurring costs of £2,000 for their misconceived application for judicial review within care proceedings. Both are heavily involved in other family cases where their attempts to assist parties have had negative consequences for both the individual and the proceedings. See for example the judgement of Mrs Justice Pauffley in the case of re P and Q (Children: Care Proceedings: Fact Finding) [2015]  EWFC 26 (Fam), where the negative impact of the activities of McNeill and McKenzie in promoting false allegations of ritual santanic abuse, spread to the wider Hampstead community.

They are not the only ones whose activities cause me serious concern, but they are among the most prolific. There does not appear to be any easily accessible mechanism to allow for dissemination of information regarding the activities of such people. My concern is that a great many vulnerable people lack access to the necessary information to enable them to make safe choices.

[EDIT March 2019 – Sabine McNeill is now serving a term of 9 years imprisonment for her persistent harassment of the parents in Hampstead]

This is in my view the primary danger of the current system of unregulated and unmonitored provision of services by MKF. This danger could be addressed to some degree by the suggestion at para 4.10(v) to:

allow a clear, plain language guide to the law that sits outside the rules and which is specifically drafted to aid LiPs and MKF… it could provide a greater degree of clarity and place the proper extent of and role played by MKF in a more positive light…

Standard Notice form, Codes of Conduct and Plain language guides

Therefore I agree that a standard notice form (question 5) together with a Code of Conduct (see question 6) would be very useful, together with a plain language guide (see Question 7) setting out what MKF can and cannot do. This will help both MKF and LiPs to understand the nature and parameters of their roles and allow the court to have necessary information in advance about who they are dealing with.

I suspect that a non judicial body needs to take the lead in drafting such guidance (Question 8) as there is always a risk that guidance drafted by lawyers reflects the language of lawyers – which is not always helpful.

Question 4: different approaches in family/civil litigation

I have no particular view on this.

Question 9: Do you agree that codified rules should contain a prohibition on fee-recovery?

Provided the issues raised above, concerning monitoring of MKF and proper sanctions for those who need them, I do not have any particular concerns about MKF who charge for their services.

 

EDIT The Response is finally published on February 25th 2019.

Read the response here. 

It’s recommendations are short

• The question of the reform of the courts’ approach to McKenzie Friends is one on which, as the consultation demonstrates, there are varying strongly held views. The growth in McKenzie Friends has coincided with the period following the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The government has been reviewing the impact of the changes to the availability of legal aid. JEB conclude that the growth in reliance on McKenzie Friends, and particularly fee-charging ones, should be considered in the context of the impact of those changes. It is for the government to consider appropriate steps to be taken to enable LiPs to secure effective access to legal assistance, legal advice and, where necessary, representation.
• The role of the judiciary is to apply the law concerning the provision of legal assistance, the light to conduct litigation and rights of audience according to the law established by the Legal Services Act 2007, the common law and precedent.
• as are professional lawyers. The statutory scheme was fashioned to protect the consumers of legal services and the integrity of the legal system. JEB’s view is that all courts should apply the current law applicable to McKenzie Friends as established by Court of Appeal authority.
• The Lord Chief Justice and JEB refer this consultation response and the annex summarising the views expressed in the consultation, to the Lord Chancellor.
• Question 7 in the consultation paper concerns the provision of a Plain Language Guide for LiPs and McKenzie Friends. JEB support the view that a plain language guide could be produced by a non-judicial body for the assistance of LiPs. The judiciary continues to support the promotion of public legal education which would be aided by such a guide.
• Finally, the Lord Chief Justice and JEB note that the current Practice Guidance on McKenzie Friends has not been revised or updated since it was issued in 2010. To ensure that it properly reflects the current case law, it should now be updated and re-issued.”

The Transparency Project comment here . They say, and I agree:

In February 2016, the Lord Chief Justice and the Judicial Executive Board issued a consultation entitled “Reforming the courts’ approach to McKenzie Friends”. Three years later, during which the problems causing and resulting from the proliferation of unregulated fee-charging McKenzie Friend services have steadily got worse, they have responded with a series of recommendations that basically involve blaming the government for the problem and suggesting that the government, not the judiciary, should sort it out.

The reason why this is feeble is that the whole idea of McKenzie Friends was basically invented by judges (in a case called McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472, in the Court of Appeal), the judiciary are responsible for what McKenzie Friends are allowed to do in court and have given Practice Guidance on the matter, yet now they are saying the problem is someone else’s to deal with.

A few days later i was sent a link by a parent to a site called Prevent Intervention Now! – protecting your family against social services. 

Under the heading ‘Help! we are under threat from social services’ ‘advice’ is given from the dodgy to the downright dangerous – see Rule 3 ‘never split from your partner’ . On its fees page it charges parents €1,200 for an appeal, going up to €2,000 for ‘full case management’. This clearly isn’t a charity.

Brian Rothery of Ectopia.com appears to be one of those behind this site.  Happily the Ectopita site is not available and appears to be ‘under construction’ . Rothery is a key player in the network of those who persuade parents to leave the jurisdiction if facing care proceedings, along with John Hemming and Ian Josephs. The damage that this can do to parents’ wish to care for their children and the dangers in which it places them are clear to see – i have commented about this further here. 

The JEB say they are

deeply concerned about the proliferation of McKenzie Friends who in effect provide professional services for reward when they are unqualified, unregulated, uninsured and not subject to the same professional obligations and duties, both to their clients and the courts…

Everyone should be worried. We are sitting back and letting parents be victims. Some MKF may have hearts in the right place but others are clearly unprincipled sharks who are out to make money off someone else’s trouble, and offering dreadful and damaging advice along the way. We should not be allowing this to happen.