Spotlight On: McKenzie Friends, how has their role changed in the post-LASPO climate? + New Research
Recent calls for McKenzie friends to be prohibited from charging fees have been echoed by the Bar Council, the Law Society and the Commons Justice Committee. Tied with recent research findings on the quality of McKenzie Friend advice we take a deeper look at how McKenzie friends operate and what this could mean for their future in the sector?
Traditionally McKenzie friends were known to be ‘friends’ or ‘relatives’ of individuals representing themselves in legal matters (now more commonly referred to as litigants in person (LIP)), who provided unpaid support at court or tribunal. This support could be emotional or physical in terms of helping LIPs present paperwork on their case but, did not necessarily include the McKenzie Friend standing up in court, asking to be recognised and advocating on the LIPs behalf.
However, following the introduction of the Legal Aid Sentencing and Punishment of Offender Act 2012 (LASPO), major cuts to legal aid have resulted in an increase in the number of LIPs, with now only 20% of cases in family court having both parties legally represented. This increase in LIPs has been met with a notable surge in the number of McKenzie friends referring to themselves as businesses, advertising themselves as the ‘cheaper, professional alternative to solicitors and barristers, that can represent victims in court’.
Although initially being understood as unpaid support, some McKenzie friends now charge as much as £75 an hour, with one client stating that following a £20,000 award in court, he soon had £75,000 costs order against him by his McKenzie friend.
Despite being able to stand and address the court, McKenzie friends remain unregulated meaning anyone can refer to themselves as a McKenzie friend, whether they have a professional qualification in law or not. As a result, there is no disciplinary or professional body that could take action against them for their failings. There is concern amongst the legal profession that professional McKenzie friends are taking advantage of vulnerable individuals, with Amanda Pinto detailing in her inaugural speech to the Bar Council that:
“We are very concerned at the growth in the number of paid McKenzie Friends who are unregulated, untrained and yet demand money for their intervention - often from the most vulnerable litigants.”
Senior politicians, including Bob Neill the Chairman of the Justice Committee, have called for a government review banning McKenzie friends, due to the risks for vulnerable clients stating ‘Regulation needs to be tightened. I certainly would consider prohibiting McKenzie friends operating for a payment’.
Birmingham City University linguistics professor, Dr Tatiana Tkacukova and Professor Hilary Sommerlad have conducted a research project into ‘Linguistic and socio-legal analysis of online forums for litigants in person’ aimed ‘to explore the quality of advice handed out through non-qualified advisers, such as McKenzie friends’.
The report found that McKenzie friends are providing ‘biased and misleading advice’ to vulnerable family litigants’. Researchers used linguistics software to examine and analyse 105 threads from three Facebook groups used by McKenzie friends, finding “many negative attitudes expressed towards lawyers, social services and the court system”. For example, some McKenzie friends had advised parents to ignore advice from lawyers, suggesting courts were institutionally unfair. The study only found a few positive comments towards lawyers and the court system.
However, there have been positive recordings of McKenzie Friend’s impact on their clients. In July 2018, Cardiff University law lecturer, Jess Mant, conducted research into ‘Litigants
in Person and the Family Court: The Accessibility of Private Family Justice after LASPO’ , which aimed to provide insight into some of the ways LIPs may now be experiencing the family court process post-LASPO, with no longer having access to legal aid. The report found that individuals who had consulted McKenzie friends felt strongly that the support they provided was beneficial given the absence of legal representation, especially so concerning the practical and emotional support offered. Although, Mant did conclude that further research was needed to ‘identify both the dangers and benefits of this adaptation of the McKenzie Friend figure’.
While Dr Tatiana Tkacukova does concur that ‘there are many positive experiences’ reported on McKenzie friend’s role in the sector, she concludes that ‘the unregulated environment online means that our research found several instances of worrying, biased and misleading advice.’.