Family Law

The concept of the McKenzie Friend was established over four decades ago, but as a group they have only really come to prominence in the last few years as legal aid and budget cuts within the family justice system have left many families without legal representation. McKenzie Friends are lay advisers who provide moral support for litigants, take notes, help with case papers and give advice on any aspect of the conduct of a case.

The Practice Guidance issued in 2010 by Sir Nicholas Wall, then President of the Family Division and Lord Neuberger of Abbotsbury in his role as Master of the Rolls, defines the scope and remit of McKenzie Friend assistance. The Guidance also reinforces the right of parties to obtain reasonable assistance.

Traditionally, McKenzie Friends have been family members or acquaintances, and for the most part offered their help free of charge. Today there is an increased demand for this kind of informal support, and this in turn has seen some quarters of the McKenzie Friend sphere charging for their services.

The result is a fast-growing sector of people offering advice and support to partners and parents who cannot afford conventional legal assistance, increasingly so at a price. And with more than half of all parties today being unrepresented in family cases, the trend for growth is set to increase.

No surprise then, that The Legal Services Consumer Panel have started to research this area and as of last month published their first report which calls for the regulation of McKenzie Friends.

The report divides McKenzie Friends into four categories:

• Family members of friends who give one-off assistance

• Volunteer McKenzie Friends attached to an institution or charity

• Fee charging McKenzie Friends offering narrow assistance

• Fee charging McKenzie Friends offering offer full assistance within the current guidelines

The Legal Services Consumer Panel concerns itself with the last two categories and explores the risks of obtaining assistance from McKenzie Friends who charge a fee but who are currently exempt from regulation. The Panel argues that such exemptions are dangerous and leave the consumer unprotected. This of course ignores the realities of contract law which may cover certain agreements as between clients and McKenzie Friends, but is a valid observation in a rapidly changing legal landscape which could potentially take advantage of vulnerable families.

There is also a desire amongst some McKenzie Friends to be regulated. Regulation offers a form of recognition and validation, which some feel would help remove the current stigma associated in some quarters with being a McKenzie Friend. Others feel regulation would drive much-needed support out of the system and create greater complexity and delay within the family courts. But what if anything should be regulated and do the Panel's findings reflect the reality?

Whilst McKenzie Friends have typically worked to a narrow remit, which seemed only to encompass an extended form of moral support, the 2010 Practice Guidance paints a very different picture.

Confusion still reigns over what McKenzie Friends can and cannot do, with the common perception that this group cannot conduct litigation or have rights of audience, persisting. This is simply not the case, and as more families seem unable to afford lawyers or meet legal aid criteria, more and more McKenzie Friends are seeking to flex the boundaries of Wall and Neuberger's Guidance.

McKenzie Friends may, under certain circumstances, exercise rights of audience and may also conduct litigation. Presently they must be granted permission by the court, but that right to seek permission exists, although both are mutually exclusive - being granted rights of audience does not automatically infer a right to conduct litigation and vice versa.

In practice, few McKenzie Friends today seek permission to conduct litigation, but there is a slowly evolving trend to seek rights of audience. Often, this is required to assist vulnerable or averse parties who feel overwhelmed by the process, which is a common reaction to the daunting modus operandi of a family case.Nevertheless, the Legal Services Consumer Panel is understandably hesitant about granting automatic rights of audience, but the reality on the ground may well force a change in practice.

This brings into sharp relief that which should be regulated. The Panel observe in their report that little is known about what kinds of services McKenzie Friends offer and who is offering those services. It might be rather difficult then to ascertain how to regulate moral support for instance, or the task of taking notes. And whilst there is a clear case for regulating a complete service which incorporates both the narrow and wider remits of McKenzie support, it is hard not to feel that the call for regulation is too much, too soon.

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Natasha is a non-practicing barrister and Editor in Chief of The Encyclopaedia on Family and The Law. Natasha also runs the family law project, Researching Reform, which is dedicated to child welfare inside the family justice system. She is the Consultant for the All Party Parliamentary Group on Family Law and The Court of Protection.

Natasha can be contacted via Twitter @SobukiRa.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.