Beware free lunches

When I first wrote the Family Court without a Lawyer back in 2009 I didn’t write it for McKenzie friends to use, but I do know that over the years many have bought it, have come to rely upon on it and to recommend it. Those who have read it will know that in the book I suggest care and caution in choosing where to go to for support with a family court case – whether that is a lawyer or a McKenzie friend. They will know too, that I set out in the book the very particular reasons why someone who is struggling to pay for a lawyer is taking a little bit of a leap into the unknown when they choose to pay a McKenzie friend. You might strike gold or you might be taken in by someone who is happy to exploit you, or who just doesn’t know their own limits. And if it goes wrong you’ll be out of pocket with probably nowhere to turn for redress.

Last week provided a little reminder of why all that caution is important. A little bird told me that a certain McKenzie friend had been offering copies of The Family Court Without a Lawyer for free, in exchange for positive reviews. Sounds unscrupulous, no? Quite apart from the blatant copyright infringement. I was doubtful it was true. But it was.

Here’s what I found out.

First of all let me show you one of the ads in question, for context (there are various iterations / versions) :

 

 

 

 

 

 

We’ll start here with Mckenziefriend.net. Looks swish, right? But here’s where you need your critical faculties about you.

Points of Note :

  • ‘The UK’s leading McKenzie friend service’. Big claim. How is it backed up? Do they operate in Scotland too? Do they even know Scotland is an ENTIRELY SEPARATE legal system with ENTIRELY different law? What is ‘leading’ and who is measuring it?
  • ’30 community awards’. Impressive. Why are none of them named or shown? What are they for? Dog walking skills? Decorating?
  • ‘Over 20,000 successful cases’. Hang on. That would take me 83 years to achieve assuming I worked full time Monday to Friday 48 weeks a year and ‘won’ a case every day (And that’s assuming I only ever ‘win’ cases). Maybe there are 83 Mckenzie friends?
  • In fact, according to Linkedin (linked from top right) there are two of them. 41.5 years. Neither of them look 40.
  • Scroll down…They assist with ‘the following cases and more:
    • Child arrangements
    • Divorce proceedings
    • Proceeds of crime
    • Immigration
    • Non-Molestation Orders
    • Driving offences
    • Parking fine disputes
    • Medical negligence
    • Employment tribunals’

    This is a wide field of expertise, for sure. Wider than mine. Doesn’t seem to cover copyright though. *Snark*

    What does ‘assisting’ mean? Advice? Litigation? Advocacy? Are they authorised and qualified to conduct litigation or advocacy? (it’s a criminal offence if not).

  • Their ‘team’ (of 2) includes ‘Barristers, Solicitors and Law Students’. Strangely, none named. Are they practising barristers and solicitors? Or just law students? Neither of the two people identified as ’employees’ on Linkedin are regulated lawyers authorised to conduct litigation or advocacy. One is Preenay Chohan, and the Director of the company behind the site, and was never even a law student if the CV on LinkedIn is accurate. The other is also not a qualified lawyer (and seems to have have marginal involvement as a volunteer).
  • They do however ‘have professional indemnity cover of £5m and are regulated by the ICO’, according to the site. Which is reassuring…Isn’t it? There is an ICO logo at the bottom of the page which links to the ICO website. Must be legit. There is an insurance company logo which links to their page too. Ditto. The funny thing is that when you search for the name of the website…or the name of the company that is referred to on the LinkedIn page (McKenzie Friend Services Ltd)…or the name of the second Mckenzie friend company recently registered against Mr Chohan’s name at the same address (RST Holdings)…or the physical address in Birmingham itself – none of them brings up any relevant registration with the ICO. What a surprise. I wonder what would happen if you asked to see their certificate of insurance?
  • The site itself isn’t directly identified as a trading name of McKenzie Friend Services Ltd. You only get that link via the LinkedIn page and other social media platforms. But LinkedIn for example clearly identifies them as the same outfit. I’m no company law specialist, but I’m pretty sure you are supposed to identify which company is trading on your website so people know who they are trading with and what legal protections they have (or don’t). Where the new company fits in to all this, I don’t really know. It’s got the same address, same director, same broad purpose. And that Director is the same Preenay Chohan who has been the director of various other assorted companies, one of which was the subject of a compulsory winding up order in February, just a week or so before the new RST Holdings company sprung up last month (that one was a lettings agency by the look of it). A veritable entrepreneur.
  • Companies House also suggests a very small turnover for a company with 20,000 happy clients and 2-10 employees (Linkedin). in fact it shows a very small turnover for a company with one mildly impressed client. But then, depending on where you look this company / site / individual doesn’t charge for its services at all. Except way down the website’s facebook page and on the Insta account that is linked to from a second, related facebook profile called win law 902, which seems to be Mr Chohan’s page. Anyway, that page helpfully takes us through to Mckenziefriends.net on Insta (keeping up at the back?) which alongside the price list also offers free copies of the book for free. Yes, my book. Somewhere else.
  • Some of what is on offer is alarmingly cheap (£46 for a bargain bucket enforcement application) but some not so much (£833 for divorce + financial package, £1k for ‘full case management’ – unclear what ‘case management’ means). It’s not really clear what you’d get for your money, but I’m going to stick my neck out and say two things : a) you won’t be getting expert legal advice or representation from a qualified lawyer, and b) on that price list either the company doesn’t really have 20,000 clients (happy or otherwise), or it isn’t declaring all its income. Or maybe a bit of both. Or perhaps it’s just a more charitably minded outfit than I am giving it credit for. They do clearly like giving away things for free.

That’s the site. What about this book in exchange for reviews thing? Well, although he/they WERE dumb enough to publicly pass off my book as theirs / theirs to give away, none of these social media posts was dumb enough to explicitly say that the book is offered in exchange for a review, but that’s where the DM comes in. Here’s what happens if you DM as requested in the posts :

“Hello, Thank you for getting in touch. I feel a free consultation may also benefit you if you are based in England or Wales. If yes, please book via calendly.com/mckenzie-consultation We are also more than happy to send you a FREE copy, but please leave us a review on https://g.page/r/CbranJVR9zXdEBI/review. Please also get in touch if you need any further support? This is the book. [link removed]”

That is clearly an inducement to leave a review in exchange for the freebie. And yes, they do provide the ENTIRE BOOK, cover to cover for free, and in a shareable form. Or they did. Until we pointed out the issue to the site unwittingly hosting it (yumpu).

And of course once you’ve done that they’ve got you. Got your details, your booking, your review. Got you on their suckers list for all I know.

I’ve confirmed this and have screenshots of this message being generated in response to requests made both before and AFTER Mr Chohan was called out for this on social media (not by me, by someone else who recognised it as inappropriate). So it’s not just a simple whoopsie.

(Another mystery is that if you click on the review link in the message above you get a whole different set of google reviews for a business called McKenzie Friend Services, but this one has a Manchester address. It links back to the same mckenziefriend.net web address. Those are mainly 5 star reviews, posted on the day of the Facebook offer for a free copy of the book with no comments. Coincidence?)

Look, this is all very tedious. And frankly I’ve only bothered checking it out because I’ve been cooped up in isolation with covid and I’m stir crazy. And it was the gift that just kept giving. My book is deliberately cheap because I know the people that need it don’t have a lot to spare. It’s usually less than £20 on Amazon. And I’m happy if its reaching people who need it. But I do put a lot of time, expertise and effort into writing that book and into keeping it up to date, and whilst I get a decent royalty cheque twice a year, I could frankly earn a lot more money by just charging my hourly rate as a lawyer and going to court and not bothering to update the book. When I started I nearly bankrupted myself taking time off to finish the book – even with a one off grant, it represented a massive hit on my income when I had a new baby to feed and a mortgage to pay. This time round it took me a month to do the updates for the fourth edition (unpaid – bye bye December earnings), and yet the royalties I will generate in the course of a year, I could probably now have earnt in a day or two at court, not a month. So, for me, neither the book nor this post are about the money. More importantly, the copyright actually belongs to the publishers who also work bloody hard and deserve to earn a living (they publish stuff for the little people, including the Great Post Office Scandal. They are good guys, not some massive publishing house).

Even more importantly, exploitation makes me cross : if this outfit is prepared to rip people off by giving away things that don’t belong to them, and if not all the claims on their site stack up : How much can you trust them with your money and your case? Use your eyes and your brains. There is no such thing as a free lunch.

So I want to say this to those who are thinking about using a McKenzie friend (not just this one – any McKenzie friend). If you can afford a lawyer, get one. No decent McKenzie friend will tell you otherwise – a McKenzie friend can help with some things, but they aren’t the same as lawyers. If you are using a professional Mckenzie friend, whether you are paying for them or not: check them out with care. Any old scammer can knock up a flashy website in a couple of hours. Any old busybody can wreck your case within a couple of hours too (I know, I’ve had to pick up the pieces for clients who realised too late their ‘friend’ was not helping do anything apart from unburden them of their life savings). Dig properly. Does the website have the names and CV of real people – those who will be offering a service? What are their credentials? Is there an ICO registration number that checks out, an address and company number? Or is it all shiny offices, references to ‘our team’ and lifestyle pictures? Don’t rely on what they imply or even what they explicitly state on their website. Ask to see proof of credentials, insurance, references. If they won’t answer your questions don’t touch them with a bargepole. Google their name. Amazing what you can find out. And find out what service they are actually going to give you for your money before you part with it. Get it in writing.

I’m not saying don’t ever use a McKenzie friend. There are some good ones out there. But take great care. And… whether you have a Mckenzie friend, a lawyer or neither – the book won’t hurt as a companion (of course, I would say that, wouldn’t I?). [update : this is a really useful link, telling you what to look out for when choosing a McKenzie].

The 4th edition will be out soon. Those who have been given a free copy of the 3rd edition are welcome to it (though it’s now quite out of date and your link will have stopped working if its a dodgy one from Chohan towers). Anyway, I recommend you spend a few quid on the up to date version, because 2017 (when the 3rd edition was published) is a long time ago in family law terms. And, for those of you who were recommended to use it for your family court matters in Scotland or further afield – do take care. My book is not about the law or procedure anywhere apart from England & Wales (I know nothing about the law anywhere else!).

For readers who have endured this far – you can get 20% of the 4th edition when it’s out – or off of any of the other books published by Bath Publishing, using discount code yumpu22 by ordering direct from the publishers : www.bathpublishing.com.

Finally finally, if you need some help and still can’t afford the book, check out www.familycourtinfo.org.uk and in particular the videos that we made for the 3rd edition (along with lots of other useful ones made by other people). People seem to find them helpful. Check out www.transparencyproject.org.uk (though they don’t provide advice), or www.frg.org.uk or Citizens Advice or AdviceNow or Advocate or Rights of Women. And please check if you qualify for legal aid, even if you think you don’t.

 

PS I’ve spared you guys most of the endless screenshots evidencing the above, but trust me, I have them.

PPS Mediators – they are also offering MIAM Certificates?!

Delayed Reaction…

Today’s mediocre blog post is brought to you from the Sunday sofa of covid…(actually, its probably just a mild non-covidy virus, but confirmation is awaited)… I blame any typos, non-sequiturs, offence or error on the wretched germs.

I did read the President’s Case Management Guidance when it was issued recently, honest I did. But if we’re doing honesty, it must also be said that I didn’t read it that closely – I gave it a quick eyelash, sighed and got back to work. I was also possibly slightly distracted by the bread-based metaphor in the accompanying ‘View’, and generally diverted by other pressing life and work priorities. The catch 22 reality is that if we all went through all the guidance with which we are issued with a fine toothed comb, there would be no time to put any of it into practice (let alone write blog posts about it).

Anyway, belatedly realising that the Case Management guidance has caused some furrowed brows – particularly around the topic of experts – I thought I ought to go back and take a proper look.

We seem to be moving somewhat beyond a position of ‘necessity’ (the statutory test) in respect of experts, to one of exceptionality: firstly with the bald (and bold) statement that ‘applications for independent social workers or psychological assessments should not be necessary’, and latterly with the statement that ‘Cross examination of single joint experts should be the exception not the norm’. It is true that the guidance does also refer explicitly to the test of necessity, but the emphasis in this bold heading and when read in context is that, at least in the case of social work and psychological experts evidence, they WILL NOT generally be necessary. Which is presumably an indicator that judges are thought to have been approving the appointment of such experts inappropriately?

My own recent experience is that ISWs are being routinely instructed because the local authority who needs to undertake an assessment has no capacity. In fairness, this is usually at the LA expense and not a single joint expert instruction, because it is just a contracting out of the LA’s own responsibility. So perhaps that is a distinct issue. But it underlines the point that LA’s don’t always have a person of sufficient expertise available to undertake a particular piece of work, and this may well mean that in some cases, rather than paying for an ISW, a LA may put forward someone without the requisite experience for the particular assessment. I haven’t encountered that but it seems eminently possible. Either way, I don’t see many applications made for the joint instruction of ISWs except where there is a particular reason, most often a specific issue which requires some more niche expertise than the allocated social worker or guardian can offer (that is not by the way a criticism of social workers), or where the LA has demonstrably closed its mind or otherwise messed up an earlier assessment.

As for psychologists, there may be a small number of cases where a social worker will to readily attempt to pass the buck for assessment to a psychologist, but in my experience there is usually a genuine need for the particular insight a psychologist can bring, to help the social workers understand parental behaviour in order to inform a plan for support or care, or to help really identify what it is that a child needs from a placement and whether or not a return will actually be in their welfare interests. Sometimes that can be done by a social worker, but not always. On any view, such a report will be necessary in a minority of cases. I don’t see in my own practice that they are being permitted at the drop of a hat. Perhaps this is happening in other places – it would be interesting to have some data on the pattern of applications and the frequency of them being granted or rejected, as anecdotal information is limited in what it can tell us.

As for the questioning of experts, well…

There is actually a rule dealing with this. Obviously, because its in the actual rules everyone ignores or forgets it, but it is there :

25.9 General requirement for expert evidence to be given in a written report

(1) Expert evidence is to be given in a written report unless the court directs otherwise.

(2) The court will not direct an expert to attend a hearing unless it is necessary to do so in the interests of justice.

There is no entitlement to call an expert – it must be necessary. This is not new. Be ready to justify it.

Also more honoured in the breach, particularly in terms of the 10 day timescales, is the subsequent rule (25.10) on written questions :

25.10 Written questions to experts

(1) A party may put written questions about an expert’s report to

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 25.11.

(2) Unless the court directs otherwise or a practice direction provides otherwise, written questions under paragraph (1) –

(a) must be proportionate;

(b) may be put once only;

(c) must be put within 10 days beginning with the date on which the expert’s report was served;

(d) must be for the purpose only of clarification of the report; and

(e) must be copied and sent to the other parties at the same time as they are sent to the expert.

(3) An expert’s answers to questions put in accordance with paragraph (1) –

(a) must be given within the timetable specified by the court; and

(b) are treated as part of the expert’s report.

The President might have a point on the written questions issue – I suspect it is not unconnected with the funding regime and the way in which counsel are instructed shortly before hearings, but it is rare in my experience for good use to be made of the written questions process, and in particular for it to be done timeously. It’s more often raised at the hearing subsequent to the report (inevitably out of time) by an advocate just instructed. It would clearly be preferable if, within 10 days of receipt of a report, instructions were taken and proper focused questions asked – but in truth I’m not sure how feasible that is, which is no doubt why courts routinely grant extensions when later requests are raised.

There are some courts I’ve appeared in where individual judges already insist on proper justification being given for the calling of an expert at a final hearing in accordance with FPR 25.9 – that’s not to say they won’t allow it, but they do ask why its necessary – and why written questions won’t do. There are some situations where written questions are frankly just fine, and others where live, responsive cross examination is essential to the justice of the case. As a very sweeping generalisation I’d say the latter predominates, but every case is different. Again though, to use the written question process properly requires early analysis of the issues, advice and the taking of instructions – that is to say the formulation of a case strategy at a time where a trial advocate is either not instructed or simply not in a position to get up to speed. Part of the answer is earlier instruction, but workloads mean that the mere dumping of papers on counsel at an early stage is not a complete answer – there is no framework for an advocate to be properly remunerated for this front-loaded early work, solicitors may naturally want counsel (where instructed) to deal with such matters, and I for one find it increasingly difficult to read in as soon as papers arrive – I do my best but something has to give somewhere. (The dynamics of this are no doubt somewhat different in cases where counsel aren’t going to be instructed, but solicitors are not hugely incentivised to do more work earlier, and they are incentivised to prevail on counsel to do more unremunerated work between hearings in order to maximise the number of cases they can take on, which is essential to maintain sustainable margins).

At any rate, I don’t object to the court quite properly deploying FPR 25.9 to explore whether or not an expert is really required to attend (we’ve all seen cases where they are required to attend even though counsel doesn’t really have anything of utility to ask) – but the idea that the attendance of experts should be ‘exceptional’ is a step further than the rules go, and I suspect will be much more controversial.

There is, of course, a lot more in the case management document than these specific points on experts, but in essence all of it is about economising, trimming flab and slimming down the process to produce more sausages more quickly. Fewer hearings, fewer fact findings hearings (notwithstanding Re H-N), fewer witnesses, shorter hearings. The President wants us to go back to the principles which emerged from the Norgrove review in 2011 (I remember it well – the President was on the panel, I gave evidence to it along with Stephen Cobb (now Cobb J)). But these times are nothing like the (comparatively) golden days of 2011. There is more to do, with less people, less time and less resource. There is limited goodwill and everyone is on the brink of burnout. And as for the re-emphasis of the post-Norgrove amendment that is s31(3A) (requiring the court to consider the permanence provisions in a care plan but not necessarily the remainder of the care plan) – it is worth noting that the Guidance does not rehearse the full wording of that provision. The Guidance suggests that the effect of s31(3A) is to ‘require the court […] not… to consider the remainder of the care plan’ (note the … between ‘not’ and ‘to’).

S31(3A) in fact says that the court is ‘not required to consider the remainder of the section 31A plan, subject to section 34(11)’. It doesn’t say it mustn’t consider it. And s34(11) positively requires the court to consider and hear submissions from the parties on ‘the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom s34 applies’. This is important. In some cases it will be essential to consider the detail of a care plan, because the appropriate outcome i.e. whether the care plan is endorsed by the court will depend upon it. And in ALL cases the contact provisions should be the subject of specific consideration. I set this out because the danger is always that a quick eyelash at guidance by a busy judge or magistrate, without going back to the wording of the statute, might lead the court into bulldozing through properly made points about the contents of care plans, which are genuinely important in reaching a conclusion on the welfare interests of a child – whatever s31(3A) says, welfare remains paramount and that is the court’s main job.

I understand of course why all this is being said : something must be done to ensure the ship stays afloat. And it is listing dangerously. But we need to take care to ensure that the tail of expediency does not wag the dog of justice (I’m not even a tiny bit sorry for that metaphor). Whether and how these aspirations for a leaner, more efficient and more functional Family Court translate into reality remains to be seen. If I had the energy I would probably weave in a reference to the risk of Ruff Justice, but frankly I’m too tired to bother…

 

The burden of proofing dough

The metaphor in the President’s latest view about the self-perpetuating problem of the backlog has sent me into a sort of weird fever dream :

“Backlog and delay in the Family Court are not, therefore, static; like dough proofing on a baker’s shelf, they have the potential to feed on themselves and grow the longer cases are left without a final resolution.”

I’ve been imagining some some sort of sinister expanding gloop, slowly taking over…feeding off the pain of separated couples like that bubbling pink gloop in the sewers, feeding off the anger of New Yorkers in Ghostbusters, and somehow driving all the New Yorkers crazy as it grows and spread through everything, coming out of every tap…

I’ve been imagining vast soft, doughy, rounded yet sinister creatures, like the Stay Puft Marshmallow man.

I’ve been pondering on the original ghostbusters, the four of them running around like headless chickens in their beaten up car, making things up as they go along, trying not to cross the streams for fear of a catastrophe, hopelessly overwhelmed by the non stop cries for help, trying to contain all the ghosts of an entire city in their run down fire station (and being actually a lot more misogynist than we’d like to remember) – and I feel like my working life is maybe some sort of strange parallel with a bad 80s movie.

Between household chores and preparations for Sunday lunch on this rarest of weekends that actually resembles a weekend, I’ve been trying subconsciously to unscramble the living metaphor that seems to have lodged itself in my head, taking up more and more space where my brain should be. In my dough-busters fever dream I’ve been trying to work out which Judge is the Keymaster, what Sigourney Weaver signifies, and how to appease Zuul – in the hope that if I can reverse the metaphor I might solve the backlog. But I can’t.

Maybe it’s just a metaphor after all. And I just need a break more than I thought.

Don’t we all?