Keeping it in the Family: Why Lawyers do have a place in Family Disputes

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We have re-visited the interesting issue of the use of McKenzie Friends (MFs) a number of times in the Bennett Griffin Family team’s blogs etc. Our basic, unswerving response to the subject is that MFs provide a viable and valuable service for some, but that as the MFs do not and cannot provide professional legal advice, reverting to a lawyer is vital, if only on a limited basis, to ensure that the complexities and the nuances of the particular legal issue are grasped.

There are undeniable reasons why the services of the lay person MF are free or charged at an often lower rate than that of a qualified lawyer: the clues are in this sentence! This has been a given for many years now and the roles being so distinct and the differences so obvious, when the two worlds meet, there is mutual appreciation and understanding. A few MFs I have encountered have helped save the day at Court by encouraging the other party (who is without a lawyer of course) to listen and act calmly, in the interests of the children or indeed themselves.

A reasonable analogy is that of a handy-man (MF), as opposed to a qualified plumber (lawyer), changing your tap. The former might be fine for the job, as long as you don’t spring a leak in the process and need the whole section of pipework replaced.

The judiciary is continuing to consider the role that paid McKenzie friends play in the justice system. The Judicial Executive Board set up a working group in September 2018 to expand on proposals first aired in February 2016. Campaigners wanted to ban fee recovery by McKenzie Friends and hold unqualified advisers to a code of conduct. If we Family lawyers are deemed to have messed up, we can be held immediately accountable by our peers; the Legal Ombudsman; the Solicitor’s Regulatory Authority; the Law Society and/or by Resolution, to name the most obvious bodies. We have a duty of care to you, the client, as part of our retainer, as your professional advisor. The MF has no such duty and no related accountability or responsibility to the public.

Now it would seem that some MFs are of the view that the law has nothing to do with family disputes, thus challenging the need for the separate role of lawyers. This is unchartered territory and controversial in its untenable premise. Hence I felt compelled to post this blog, one of many on the subject, but with the debate taking an altogether different tone.

The Law Society Gazette recently interviewed the founder of McKenziefriendUK, Philip Kedge, a former police officer, who has set up a venture linking the public with McKenzie Friends. He told the Gazette that it is an “…irrebuttable truth” that family law does not need lawyers. He went on to say “…the legal system in family law is no more than human disagreement – there are no legal questions.”

In making such a statement, the sensitive and complex law as to a, for instance, child abduction matter, is ignored. More common place even is the crucial application of the s.25 factors of the Matrimonial Causes Act 1973, as to division of the family finances on a break up. So, a knowledge of the relevant law really is very important in fact, to say the least…And, we do work closely with Mediators, Family Consultants and other related professionals because we do appreciate that many legal issues cannot be fully resolved without the underlying emotional or other dynamic being addressed firstly or alongside. Combined Family law services have hugely evolved in this way in the last ten years.

Although the above website describes itself as taking “…family law out of the hands of solicitors”, Mr Kedge says he is clear that the McKenzies offering their services on his website should not describe themselves as “professional” and that “…we don’t claim to be professional. We are a lay person who can offer support”. Therefore, he rightly accepts the limitations of the service provided, but doesn’t think that it matters…

I turn to the rationality of the Law Society President Christina Blacklaws when she says about MFs: “Court proceedings are complex, and are not easy for untrained people to deal with. The risks to clients include that the paid Friend will give them bad advice; will make bad arguments; will fail to make good arguments, and may well end up pursuing a case that should never have been brought, or losing a case that should have been won. If that happens, the client will have no redress with an unqualified, unregulated Friend. They won’t in fact be “a client” with rights like a solicitor’s client: they are simply the customer of a paid Friend.”

She continues “…and while it may be true to say that some of the details around family cases are logistical rather than legal, there is a significant risk a Mckenzie Friend will not be aware of the rights of the person they are representing and cost them dearly by getting the law wrong.” She added: “…paid-for McKenzie Friends are not necessarily more affordable than solicitors. It is not unusual for them to charge several hundred pounds for their services. For the same price or less, you could get a consultation with a qualified lawyer which would do far more to set you on the right path.”

If you would like to know more about how Family lawyers can assist you in resolving your dispute, please contact Jackie Mensah and Jackie Gifford (both qualified and highly experienced lawyers, trained by Resolution) for an initial, confidential, no-obligation chat. It is not all about going to Court: Jackie Mensah is a Collaborative lawyer also. We know the law and better still, we know how to make it work for you and your family.