Family Law

Kerry-Ann Barry, University of Salford

Keywords: Litigants in person - McKenzie Friends - access to justice - legal aid - private family law

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The full version of this article will appear in Child and Family Law Quarterly, Vol 31, No 1. 

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The removal of legal aid from the majority of civil and family matters has led to the emergence of a new entrant to the legal services market. Fee-charging McKenzie Friends are reportedly extending their traditional role of assistance to litigants in person in court proceedings to incorporate legal advice and representation. Concerns about the access to justice implications for litigants in person of introducing a new branch to the legal profession has culminated in a judicial consultation advocating a prohibition on fee recovery. Smith et al’s recent report, however, casts doubt on the appropriateness of this recommendation suggesting instead that regulation may be a more proportionate response. This paper considers the debate on the future of McKenzie Friends by analysing the existing empirical evidence as well as the findings of the author’s qualitative research on the experiences of litigants in person in the civil and family courts. Whilst McKenzie Friends who are inimical to the access to justice needs of litigants in person exist, evidence from litigants in person suggests that in the absence of legal aid, fee-charging McKenzie Friends can provide a more flexible and affordable alternative to the legal profession. Overall, this paper highlights the importance of listening to the experiences of litigants in person to provide them with a voice before making the important access to justice decision of introducing a fee prohibition. Adopting a litigant in person focussed approach may indicate a system of regulation, education and court supervision.

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This article has been accepted for publication in Child and Family Law Quarterly in Issue 1, Vol 31, Year 2019. The final published version of this article will be published and made publicly available here 24 months after its publication date, under a CC-BY-NC licence.