McKenzie Friends Giving “Worrying, Biased And Misleading Advice”
A study by Birmingham City University and University of Leeds has found that McKenzie Friends (MFs) give ‘biased and misleading’ advice in family law.
Researchers examined 170 threads from three Facebook groups used by MFs to discuss family law cases, found ‘many negative attitudes expressed towards lawyers, social services and the court system’, compared to a few positive comments.
The research was undertaken to examine ‘whether vulnerable people representing themselves in child court cases find themselves and their children put at risk by misinformed or biased online legal advice.’
Since access to Legal Aid was cut in 2013 through the Legal Aid, Sentencing and Punishment of Offenders Act there has been a rise in the number of cases having either one or both parties unrepresented.
Since 2013 the number of cases where both parties are unrepresented has increased 24% and the number of cases where both parties have representation has dropped from 41% to 19%.
Experts are in no doubt that the increase of litigants in person (LiP) has been mainly caused by the cuts to Legal Aid. People who are unable to afford legal advice are turning to any means necessary to gain the information they require.
It was reported in June this year that a free advice clinic provided by law students at the University of South Wales had a waiting list of 6 months.
Desperate parties are also turning to friends, family, advice online and MFs for the help that they need. Often the person is in a desperate and vulnerable state and will trust those dispensing advice, putting their case at risk when the information is wrong.
Increasingly there are reports where untrained and unregulated MFs have left their clients out of pocket or even had them break the law due to unfit advice. In March this year a MF, who had admitted to having only a law degree from the Open University, was ordered to pay more than £260,000 after causing his client to miss out on damages in a medical negligence case, as well as incur huge costs.
The MF’s client told The Times:
“If I had been able to access legal aid and enlist a professional solicitor’s firm I would have had my compensation many years ago, which would have improved my quality of life and that of my family who care for me.”
Previously, MFs were either friends, relatives or a person who offered unpaid support to a person at a tribunal. MFs were there to provide moral support for litigants, take notes, help with case papers and quietly give advice. They were not allowed to act as an agent in the proceedings, address the court or sign court documents.
Since 2013 there has been a rise in the number of paid MFs, some charging over £65 per hour for advice from a person often with no legal training or experience, as well as often being uninsured.
Law Society president Simon Davis said:
“MFs are unregulated and the term covers a multitude of informal roles, so there is no centralised data we know of that shows how many people are assisted in this way, but as legal aid cuts bite deeper and more people are forced to deal with legal problems without a solicitor, unscrupulous MFs may take advantage of an unmet need.“
There have been calls over the years for regulation to the services provided by MFs. The Bar Council and The Law Society have called for paid MFs to be banned and for regulation of those who provide advice free of charge.
Tatiana Tkacukova, a senior lecturer in English language at Birmingham City University, said:
“MFs provide a much-needed service to offer advice and support to those for whom the legal system and the language of law is completely alien.
“While there are many positive experiences, the unregulated environment online means that our research found several instances of worrying, biased and misleading advice.”
We asked a number of solicitors for their views and experiences of McKenzie Friends.
Jennifer Crossthwaite, associate solicitor from Goodman Ray said:
“Having a Mackenzie friend on the other side can have pros and cons. On the one hand, it is beneficial to the party who cannot perhaps afford legal representation to have someone they know and trust supporting them through a difficult experience. However, on the other hand, a Mackenzie friend can sometimes make the process more complicated. Some Mackenzie friends can be quite dominating in their role. This can mean that the party involved in proceedings can sometimes be following advice from the Mackenzie friend which may not always be accurate or the best course of action. However, because their Mackenzie friend is someone they know and they are confident in their guidance, the party believes this is the right route to take. Sometimes it can be better if the party remains a Litigant in Person, as at least they can then be guided by the other party’s solicitor as to the correct procedures and processes to follow.”
Julian Bremner a partner and financial arbitrator from Rayden Solicitors told us:
“When first created, the role of McKenzie friend was to help those litigating in the family court without lawyers – to provide them with help and support during their case. Normally, family matters are conducted in privacy – so only the parties could attend. A McKenzie friend could come into Court and sit next to the lay person who was arguing their case. However, their role was more than just moral support; whilst a McKenzie Friend should not present argument, they can take a note and provide support and assistance to the person who was litigating by themselves and help them prepare their case.
“However, this ability to be a McKenzie friend has been exploited, sometimes unscrupulously, by so called “professional” McKenzie Friends; generally they have no legal training, and are not regulated by the Law Society, but promise to assist parties with their litigation – at a fee.
“Unfortunately, you get the lack of expertise you are paying for. Solicitors have to qualify and undertake training each year- a McKenzie friend has no obligations at all.
“Whilst some McKenzie Friends may be helpful, it is often the case that some may make a bad situation worse as their lack of training and expertise in the law aggravates matters, rather than facilitating dialogue and settlement. Some professional McKenzie Friends unnecessarily “grandstand” in and out of court – impressing their client but not trained professionals. Paying a McKenzie Friend who is attending Court and potentially arguing what is a life altering matter, with no greater skills or knowledge than their bravado, seems like a very poor deal indeed and is no substitute for proper and considered advice by Solicitors expert in the area of law in which your problem is founded.”