Tag Archives | McKenzie Friend

McKenzie Friends in the Scottish Family Court

Is that the high road or the low road?

Family lawyers are still pondering how the family justice system is going to cope with the withdrawal of legal aid for divorce financial proceedings and the growth of self-reppers or Litigants in Person. The Government appears keen to take the family lawyers out of the equation if at all possible. It even appears keen to take the State out of the equation judging by the anticipated new statutory child support scheme slated to commence in October of this year and the renewed drive to divert potential litigants towards mediation. This new statutory child support scheme will, by the way, re-double its efforts to encourage parents to reach their own maintenance arrangements. I have no quibble with that aspiration but sufficient resources need to be retained by the State to assist those people who cannot resolve their own differences whether it be arising out of divorce, the separation of co-habitees, or general child welfare issues.

There have been developments north of the border (that’s Scotland, for those of my readers based outside the jurisdiction of the English court) that might have Kenneth Clarke, Secretary of State for Justice, very excited.  To explain his potential state of jurisprudential arousal, I should remind my readers that the traditional forum for settling differences between warring spouses or partners is the family court.  But the constant pressures on legal aid has meant fewer lawyers and more self-reppers in the precincts of the court.   The court administration (and Ministry of Justice officials)  know that the level of self-representation will rise, and one way of assisting such self-reppers (and prevent court business from grinding to a halt)  is to allow them to bring to the court a McKenzie Friend. I referred to McKenzie friends in one of my previous posts, which was intended to provide help and guidance for self-reppers.

But there are restrictions on what a Mckenzie friend can do in court. They can whisper in the ear and provide moral support and guidance.  But, most importantly, they are not court advocates and therefore not in court to represent the litigant in person. I have come across services that advertise themselves as a professional McKenzie friend, by attending court and completing court forms. Some services even offer to negotiate settlements for spouses which is certainly beyond the role most judges would expect the Mckenzie Friend to perform. It is not clear what training, qualification or experience underwrites the quality of such services. So the McKenzie Friend can perform a useful function but cannot speak on behalf of the self-repper in court. That would amount to court advocacy and, presently, only a tightly defined group of professionals can hold themsleves out as court advocates: solicitors, barristers and legal executives being the best known examples.

So back to Scotland: I hear that the Scottish Parliament has enabled legislation which will allow Mckenzie friends to speak on behalf of litigants in court proceedings.  It would appear that the move, if successful, is a direct response to the fact that an increasing number of people cannot afford lawyers to do the honours in court.  This is very big news.  Even bigger if Mr Clarke likes what he sees and wants to import the model to the English and Welsh jurisdictions.  Get rid of legal aid.  Get rid of bleating lawyers.  Bring on the McKenzie friends.  Perfect.  No doubt, this new breed of McKenzie friend will be highly trained.  No doubt, they will be masters and mistresses of the relevant law, court procedure and, in the matter of family law cases, deeply appreciative of and responsive to, the various stages of denial, anger, grief and acceptance that mark the psychological terrain of the average family law client.

And, no doubt, these advocate McKenzie Friends will be insured to the hilt in the unlikely event their clients feel they have got it wrong.




Self-Reppers and the level playing field

Someone needs to speak up for self-reppers.  It appears to me they get a bum deal.  In a post on my companion blog, Larkin’s Law, I examined the legal establishment’s view of self-reppers as ‘mad, bad and dangerous to know’.  I can’t believe that the vast majority of the people who find themselves without legal representation do so by design.  They are forced into this position by being excluded from forms of public funding and also finding that their private funds cannot stretch to obtaining full time legal representation.


What can the self-repper do to partially level the judicial playing field? Here are a few suggestions:

  1. Research and reassurance.  There is plenty of information available on the internet and I will be compiling some useful websites in the Resources page.  But for now I would like to mention Wikivorce.  I think the strength of the site lies in the sense of community that its registered users feel.  There are free information sheets on the site and a forum for exchange of views and advice.  Some of the ‘advice’ needs to be treated with a pinch of salt as it is too general in nature but this is a good start.
  2. Unbundle the services you need.  By this, I mean set out what you need to achieve and see if some of it can be ‘process-driven’ like the divorce process itself for a start and if you don’t mind doing it online then try some of the DIY sites.  Naturally, using some of these sites would make the lawyer in me slightly nervous.    Ideally, every spouse having to file a divorce petition (I think the new rules dictate that I should call it a divorce application) should have the opportunity to talk through the contents of the  petition with a family lawyer.  There are some traps here but the self-repper does not live in an ideal world so an online DIY divorce it may have to be. But remember, if money is really tight, you can type out the petition yourself accessed from the Court Service website and make use of the free leaflets on the divorce process you can pick up at your local county court.
  3. On the presumption that there is no eligibility for public funding, consider raising a small amount of funds (beg, steal or borrow) to obtain advice on the likely financial outcomes of the divorce from a good family lawyer.  Here’s how to find a good family lawyer.  Expect and demand, unless there are virtually no assets and little income in the marriage, to spend at least two hours with a lawyer.  A good family lawyer will want to know everything about you, your partner, your children and the marriage, perhaps even your star sign before they would even consider themselves to be in a position to outline some advice for you.  But then what would you expect?  Can a twenty year marriage be reduced to a half-hour free interview?  I don’t think so.
  4. If you are going to run the case yourself including representation at court then try, on a piecemeal basis, to get advice from a lawyer, on the documents that have been produced so far and what you should expect to happen at the court.  If you are clear about the relevant issues and, perhaps, what you need to ask the Judge for, then this would be money well spent.
  5. Hope that your spouse is going to pay for legal advice even if you are not.  Let me explain.  If a solicitor has to deal with a self-repper instead of another solicitor then there is a tendency to explain everything as clearly as possible.  Indirectly, you will be getting the benefit of overall ‘guidance’ on court process and procedure even though you are not paying for it.  There may also be the small satisfaction of knowing that this will increase your spouse’s legal costs because of the extra time spent by his solicitor having to explain every nuance of the law to you in long letters.  The Judge is also likely to ask your spouse’s solicitor to undertake tasks that should properly be carried out by you just because the Judge wants to have someone to shout at for the next hearing if nothing has been actioned.
  6. If your spouse has instructed a solicitor and you are unrepresented then there is nothing to stop you picking up the phone to the solicitor in question.  It does not hurt to be pleasant (even if their client’s actions towards you have not been sweetness and light).  You can ask courteous questions: “About your last letter Mr Jones, you mentioned the hearing coming up next week, what will the Judge be expecting us to do at the hearing?  Is there anything I have forgotten to give you or the court for that hearing?  What are ‘directions’?  What directions will you be asking the court for, and why?”  Contrary to rumour, most solicitors are human and will respond constructively although you should be clear that they cannot be seen to ‘advise’ you specifically on what you should and should not do as that would conflict with their duty to their own client.
  7. If you have to attend court unrepresented then consider using a McKenzie Friend.  This is not a solicitor or barrister but, usually, a friend or associate who can give you moral support, take notes for you and give quiet ‘advice’ whilst not being allowed to perform the role of advocate on your behalf.  There is a useful guidance note on how McKenzie Friends can conduct themselves and this should be read before you consider asking someone to help you in this way, here: Practice_Guidance_McKenzie_Friends.