Cowboys of the wild west?

Pic by Christopher Dombres on Flickr (creative commons) - thanks!

Some context on the influence of fee-charging McKenzie Friends in family law

[Ed : This is a guest post from Leanne Smith (@leanneslaw) and Emma Hitchings. I am very grateful to them for taking the time to respond to my blog post about their research. They are of course, absolutely right in everything they say. If it were not sufficiently clear from my original post : my suggestion that the research dealt only with the tip of the McKenzie iceberg (which the authors accept as factually correct) was not intended as a criticism, merely an observation about the scope of the question asked – the research was only looking at the tip of the iceberg. I was pleased to see that research had flagged the existence of what is often forgotten – the stuff below the water line. Leanne and Emma are right to broaden the issue further beyond the “McKenzie” label (which I had perhaps overstretched in a search for shorthand) and to explicitly encompass all sorts of online information and advice.]

 

Last week the report of our Bar Council commissioned research on fee-charging McKenzie Friends in private family law cases was published (the full report can be accessed here and an executive summary here). One of the report’s key messages is that we found little evidence of McKenzie Friends seeking to exercise rights of audience on a regular basis and plenty of evidence that the bulk of the work done by McKenzie Friends is done outside of court. The work McKenzie Friends do in court, we said, is ‘the tip of the iceberg’. This was the finding that last week’s Pink Tape blog outlining Lucy Reed’s perspective on the research focused on, indicating that it was not at all surprising. We hope we can be forgiven here for indulging in a few words in defence of the utility of the research. We readily accept that many in the legal professions have been aware for some time that paid McKenzie Friends operate predominantly outside court, but research has an important role to play in interrogating anecdotal evidence and providing more systematically derived evidence in order to validate or debunk it.  This is no less true because perceived experience is validated by a set of results. In this instance, our hope is that the findings of the research will function as a turning point for discussion on the subject of fee-charging McKenzie Friends in a way that the observations of some professionals who encounter them has not. In addition there are, of course, some more granular observations that we consider important buried in our report, though we will resist spoilers for those who haven’t yet finished reading it…

 

In her post, Lucy expressed some disappointment that the remit of the research was limited in such a way that it failed to get to what she perceptively identified as the ‘real meat’. That is:

The “advice” before the hearing that colours the behaviour and responses of a litigant in sometimes imperceptible and sometimes oh so obvious ways – but always in ways which are difficult to deal with, because the whisperer is unseen and his advice can only be guessed at.

 

As far as researching transformations in the provision and consumption of legal advice goes, we share the view that there are deeper revelations to be had by exploring what is largely new and unseen (and paid McKenzie Friends are neither of those things). Our research project was indeed designed with a view to exploring what McKenzie Friends do in court. It seems likely that the Bar Council commissioned it with as much concern for the consequences that incursion of McKenzie Friends into the realms of advocacy might have for barristers as for the broader consequences for access to justice. Understandable as that may be, this is an area in which the legal professions, we feel, have refused to see the wood out of jealous regard for the trees. To worry over the way in which courts deal with paid Mckenzie Friends, and vice versa, is to miss the important point that, as Lucy notes, ‘litigants are most vulnerable to exploitation and bad advice long before they come into a court room’. This observation taps into, but does not fully capture, a broader problem related to how individuals access and use advice about private family disputes in a world that is a) post-LASPO, and b) characterised by online exchanges of information and experience. One of us has previously written of how this convergence of trends has created a sort of Wild West, in which potential litigants, either unable to afford professional legal advice or unable to discern their need for it, might roam the internet and happen upon all sorts of information of doubtful pedigree and utility. The consequences are potentially far reaching, and likely to manifest in both the solutions to family problems that are constructed by those who never approach the courts and in the perceptions of family law and family justice that those who do use lawyers and the courts bring with them.

 

So where do paid McKenzie Friends fit into this landscape? They are in a sense emblematic of the Wild West, or at least the thrust of discussion among legal professionals and researchers to date has often cast them as such. Suggestions that their work ought to be curtailed have been made by the Civil Justice Council (which concluded that courts should be reluctant to extend rights of audience to them, see p 54 here), in the Lord Chief Justice’s consultation on Reforming the courts’ approach to McKenzie Friends (which proposed that they be precluded from recovering fees for in-court work), and in the conclusion that the Chairman of the Bar drew from our research (i.e. that their work ‘can and should be nipped in the bud’). All this generates a sense that McKenzie Friends are the maverick outlaws of legal advice and support provision –  the cowboys of the Wild West.

 

The concerns are not entirely unjustified, of course. As our research notes, certain aspects of the work and practices of fee-charging McKenzie Friends are problematic. Even some good McKenzie Friends would do well to sharpen their business practices to serve the interests of their clients. Lucy noted the challenges posed by McKenzie Friends who ‘caution against trusting, believing or engaging with lawyers’, so that litigants are ‘primed with suspicion’. Although we saw little evidence of such behaviour in our study, we know that it exists. Recent research by Angela Melville (accessible here – subscription required) has identified problems with the combative and inflammatory tone struck by some McKenzie Friends on social media platforms, and we ourselves have seen social media accounts in which individual McKenzie Friends repeatedly denigrate the family justice system. Such approaches are profoundly unhelpful, potentially harming litigants’ prospects of successful conflict resolution and also doing reputational damage to McKenzie Friends as a group. Those McKenzie Friends who are keen to see the development of cohesive and respectable standards of practice would do well to consider measures that might position McKenzie Friends more clearly as useful contributors to the family justice system, rather than enemies of it, and marginalise the behaviour of some of their less constructive peers.

 

However, notwithstanding the outliers, as a group, it could be argued that paid McKenzie Friends represent the tamer end of the revolution in legal advice and services. This brings us to the main point of this blog. Even if they are sometimes problematic, McKenzie Friends are categorically not the lone cowboys of the unregulated legal advice arena. As such, we respectfully suggest that even Lucy’s ‘unashamedly… broad and unconventional definition of McKenzie Friends’ cannot explain ‘the risk and prevalence of actual bad experiences that are likely to be befalling litigants outside court’. The creep of unregulated legal advice is far more pervasive and insidious than any definition of McKenzie Friends could be stretched to cover.

 

The most obvious contenders for attention are the handful of for-profit, unregulated online legal series providers that currently deal with some 10-13% of those going through a divorce. (LSB, 2016). These online platforms largely deal with uncontested divorces and handle processes rather than disseminating advice, though there are nonetheless some concerns related to their business practices (see LSB 2016, chapter 4). More importantly, however, they rely on search engines to alert potential clients to their services and what this should alert us to is the high volume of individuals turning to the internet to find information about family disputes.

 

And what type of advice and information might they encounter? Online legal services are likely to represent the thin end of the wedge. Recent years have seen a proliferation of websites carrying information of potential relevance to those embroiled in family disputes. These websites are extremely varied in purpose, content and audience and some early research by Leanne Smith revealed that it is not uncommon for information to be misleading, inaccurate and out of date. Some searchers will happen upon misinformed but dogmatic news reports, or information from another jurisdiction, and only a minority will have the digital or research literacy skills to enable them to make judgements about good and bad sources of advice and information. (Those of us who teach know that even relatively intelligent and educated law students don’t always make the soundest possible judgements about which online sources are reliable and which aren’t). Moreover, some research from technologists and cognitive and behavioural psychologists is exploring whether a sort of ‘machine heuristic’ exists, leading people to attach greater credibility to information gleaned via a machine than to information gleaned elsewhere

 

One of the most commonly used categories of online information and support is likely to be the chat forums hosted by online communities of experience – think Mumsnet, Netmums and their like.  Many use discussion forums to glean information and seek advice and many more are willing to supply this information and advice – with or without the knowledge base to do so. A quick search on any given day will reveal a range of active discussion threads of relevance to a justiciable family problem. The responses range from eminently sensible to inflammatory (‘He is a wanker, end of’), to unrealistic (‘just ring the court and get a letter saying you can take them abroad’) and simply inaccurate. Of course, people have always sourced some advice and information informally from friends, relatives and colleagues with direct or vicarious experience of family breakdown and/or the family courts. In terms of understanding what’s changed we have much to learn about what role, if any, the crowdsourcing of information online plays in influencing perceptions and expectations of the family justice process. But there are reasons to believe that online communities of experience might be particularly influential. One reason is that they have the capacity to generate, rapidly, a mass of responses that lean in a particular direction (and given the shared interests and identities of those engaging, those responses are quite likely to vindicate an original poster’s position). The ‘availability heuristic’, a well-recognised phenomenon in behavioural psychology, would suggest that exposure to a mass of supporting opinions and stories is likely strongly to colour views on what is ‘right’ or ‘normal’. This is something that would merit multi-disciplinary research. There is also further research indicating that group and shared identities can operate in online discussion forums in ways that engender high levels of trust in the information shared within them.

 

Though the potential manifestation of such trends has yet to be explored in the context of online legal advice, it is not unreasonable to hypothesise that online sources might be the murky influence that is discerned lurking in the shadows by some legal professionals. Primed with information gleaned online, it is almost understandable that litigants will mistrust a lawyer who sits in front of them contradicting what they ‘know’.  The point here is that the work of fee-charging McKenzie Friends is the tip of an iceberg in a way that is not identified in our research report. It’s the tip of an ever-growing, ever-elusive iceberg of unregulated, unqualified information and advice consumption on the part of litigants. If the research report, limited in scope and revelation as it is, stimulates discussion and investigation of the full breadth of the challenges posed by the general ‘de-legalisation’ of family law advice, it will have been worthwhile.

 

Feature Pic by Christopher Dombres on Flickr (creative commons licence) – thanks!

 

16 thoughts on “Cowboys of the wild west?

  1. So the problem is not fee charging McKenzie Friends seeking rights of audience and depriving poor barristers of their livelihood, it’s the internet.

    I imagine the invention of the printing press, where people could reproduce vast quantities of books and other printed material cheaply caused similar consternation among those who wanted to control the flow of information and limit what people could find out.

    Let’s regulate the internet – who’s with me?

    • I’m not suggesting regulation of the internet and nor I think are the authors of this guest blog post. But I do think we need to get better at providing and signposting people well to reliable sources of legal information so that they can make better choices.

  2. The research indicated that Fee Charging McKenzie Friends are an asset to the Courts as did the LCSP research.

    The hysteria from some vested interests regarding the tiny number of paid McKenzie Friends is comical and only serves to advertise them as an option to traditional Lawyers.

    Some Barristers & Solicitors are unhappy that available respected research contradicts their views, so they widen it out to the ridiculous e.g. on-line forums, prospective litigants talking to others who have been through the Courts

    Honestly, give it a rest. There is a mountain of on-line articles and also forums where Lawyers provide information such as Wikivorce, OnlyDads/Mums, MumsNet & even PinkTape at times etc. Prospective litigants cannot help but fall over themselves with the mass of information from Solicitors & Barristers on-line.

    Some inadequate GP’s complain that their patients research the internet and then challenge their diagnoses and make their job more difficult.

    The good GP’s understand that patients taking an interest in their condition is far better for them and raises standards. These good GP’s work with patients who do their own research and both GP and patient find it valuable and helps both.

    If a tiny number of litigants choose to look at other means of advice and ignore the plethora of views from traditional providers then that is entirely up to them surely.

    Prospective litigants are not the complete idiots that some paint them to be, they check out various sources of information.

    The tens of thousands of family Lawyers and the tiny, almost insignificant number of Fee Charging McKenzie Friends are going to be scrutinised by the vast majority of litigants before, during and after. If they provide a good value service then they will usually be praised in forums, if there service or advice is pants, then it will at times be broadcast on forums.

    Barristers, Solicitors and Paid McKenzie Friends are going to be slammed on these forums if they are useless, and rightly so.

    The nonsense propagated by the Bar Council, Law Society & others that Paid McKenzie Friends were a liability to the Courts and all were seeking rights of audience has again been debunked by the research, the opposite is the case.

    If as a Lawyer or Paid McKenzie Friend you are unable to persuade a client of the better course of action in proceedings, then your client is simply one of those litigants who are never going to listen, or you are simply not up to the job.

    It is an easy out to blame it on Lawyers or Paid McKenzie Friends if you are unable to explain, then persuade a client of the better options in their circumstances.

    Just because you are a Barrister or a Solicitor or a Paid McKenzie Friend or a GP or a Hospital Consultant etc – Does not mean that your word is taken as gospel anymore!

    The internet is a wonderful resource where litigants and patients can research themselves and challenge professionals of any ilk – This is to be encouraged if we are to raise standards whether in the family justice system or the NHS.

  3. ?

    Have you ever heard of Cordell & Cordell Solicitors who champion fathers in the family courts, they advertise heavily on radio?

    Have you ever heard of Rights of Women lawyers who champion mothers in the family courts, they are all over the web?

    A simple google comes up with other family lawyers who advertise specifically for either mothers or fathers.

    Yes there are fathers rights groups and women’s aid groups etc who provide information but there are also plenty of family lawyers who target either mothers or fathers predominantly.

  4. I read the original research and some of the follow ups. It’s a challenging and worrying area.

    Some background: I went through a separation and divorce through 2014/5 which saw such excitements as many varieties of malicious allegations, applications for prohibited steps orders, significant relocations, mediations, round-tables and mountains of paperwork. Following the final order, this was followed up in short order by increasing levels of non-compliance with the order, culminating in a full on breach/allegations of abuse and consequent litigation.

    This consequent litigation involved 10 court hearings, three police investigations, more social services investigations than I can remember (starting off with deeply hostile, and ending up with the team involved performing an about turn and concluding that I was the best father the manager had seen in thirty years of practice) and resulted in the court telling the parent who breached “don’t do it again” (and make a barring order on that parent – subsequent to their application to stop contact).

    I am emotionally stable, highly educated, very well financed, in a job where I engage with lawyers repeatedly every week (paying millions of fees a year) and am regulated closely in my behaviour by industry regulators, professional bodies, audit visits and the rest. Luckily I was able to afford the services of Band 1 Leading Counsel and Firms to assist me through the process.

    I was, bluntly, appalled by not only the ease with which somebody can throw legal road-blocks in the way of children seeing a loving parent and the way in which, duly instructed, lawyers co-operated. I was appalled by the way in which social services act – allowing themselves initially to be co-opted by a parent seeking to prevent a child seeing their other parent, and by the way judges failed to grip the situation. It seemed to me that the issues arose partly from individuals’ actions and partly from flawed policy and processes.

    In a sequence of litigation which resulted in the breaching parent being severely rebuked for their actions (and being made subject to what is described elsewhere as a draconian order), I was forced into incur significant (six figure) costs and emotional worry in order for my children to see me and for the situation to return to normal. Matters were easily delayed or pushed down the road.

    Along the way I saw behaviour that, outside of family law, has been deprecated by the court of appeal (https://7kbw.co.uk/wp-content/uploads/2016/07/Ferster-v-Ferster-approved-judgment-for-handing-down-on-120716.pdf) but which seems based on conversations with my legal team, in the family law context entirely accepted and normal (i.e. unambiguous impropriety etc). I have seen flat out lies by Firms (and these are not “our client instructs us” statements but assertions of fact by firms; subsequent to litigation they apologised in writing).

    If I had seen this type of behaviour by other professionals, let alone other lawyers, in my “day job” I would have been appalled. I became acutely conscious that I faced a situation that I was well prepared for, and found it awful: what would it have been like without the armies of excellent advisors and family and firm support? How do people without my advantages face up to what is a very scary world at a time when they are at their lowest – when their children and them are not able to spend time together: where professionals they are meant to respect seem co-opted by the other parent to help prevent the child spend time with you, where timescales stretch and costs mount and the paperwork can seem insurmountable.

    I would in no way class my self as a Mackenzie friend – I’d never look at a litigation bundle, I’d never appear in court; indeed I’d never charge a fee, preferring instead to donate to the likes of the FRG and others. But in a post-LASPO world, and indeed in a world where perhaps not even the “proper professionals” are as professional as one might hope I try, in some online forums as referred to above, to assist.

    I am incredibly careful to avoid inflammatory comments, I am incredibly careful to restrict comments to very practical matters or such areas of the law where, given my own extensively painful experience I’m confident I’m on solid ground. It can be as simple as reminding people to think before they answer in a rush when they’re in court: advice that once a barrister might have given people; or considering the format of a letter.

    Separately – and this I think is important – I’ve chased down those who acted inappropriately along the way. I’ve received apologies from the professionals, I’ve achieved a change in process at Social Services and there is an internal investigation ongoing into the behaviour of specific individuals who so far, Social Services have confirmed, did not act in accordance with the rules.

    This, I think, allows me to avoid mixing up my experience with any advice I may give. Indeed, one of the most common pieces of advice I give is that if Social Services is engaged at the instigation of the other parent, do not take out your frustration on them: they are professionals who are concerned for the welfare of the child and if allegations have been made then they have to investigate; respect that they are professionals with a job to do. You’ll help them to the truth if you don’t antagonise them.

    Again – separately – I am involved in attempting to review and amend public policy, processes and legislation and shining a light on mis-behaviour by public bodies. So far, some small successes in changing policy at public/quasi-public bodies. The rest may take longer!

    I’ve tried therefore to split my activities – the “Crusader” activities restricted to the areas where they can make a difference, not by acting vicariously through other parents. The “Samaritan” activities by helping those who find themselves where I was, without some or any of the resources I was able to bring to bear.

    I’m sure, as the report and other research sets out, there are many challenges with those outside the established professions, but as somebody whose own (band 1 you may recall) advisors goofed up on a matter of trite law, and who saw properly bad behaviour on the other side (albeit let’s be clear – it was limited) I am not sure that to condemn Mackenzie friends as some would do, without looking to their own professions’ challenges, gives a complete picture of family law.

    • Nicely put ‘Family Law Dad’, I’d agree with your sentiments from a similar system on the other side of the world. Whilst there are professionals involved who work efficiently and well to ensure children have the opportunity for a life with both parents I can not give all those involved the same accolades.
      In the thirteen years of my involvement in the provincial region which I live (pop 100,000) I’ve come across attitudes, behaviour, inefficiencies and ethics from some of those employed professionally (lawyers, social workers, counsellors, psychologists and the odd judge) that shouldn’t be tolerated in any area of life.

  5. Thank you lucy, ive been following the farrago for a while and recently preoccupied in a trile dispute with only heavily screened discretionary letter box contact so as much i say on the edge of my seat and point out the underdog im grateful you have. I hope there is a sequel on this reasearch to follow and i have plenty to give it momentum.

    All the best!

    M

  6. Before the Children Act 1989 “Any person” could apply to discharge a care order.This mean’t in effect that the parents could nominate any” friend” they chose to present their case in court without permission needed from a judge.
    I took advantage of this (unpaid) in the “good old days”(swinging sixties) with 100% success .In those days the magistrates smiled at me and frowned at the local authority barrister; A totally different” parent friendly” climate reigned.
    Such a pity those rules were changed …………………

    • well Ian, I was a mere twinkle in my fathers eye back then. But I’m PRETTY sure the safeguards for parents and children back then were pretty much non-existant compared to the current system. And that the understanding of risk was significantly underdeveloped compared with now. No doubt parents could nominate a friend because there wasn’t any entitlement to legal aid. Fortunately they no longer need to rely on the advice of those who are not legally qualified.

      • I think they understood then that to take a child from a sane lawabiding parent for future risk was out of the question;I can think of no circumstances whatever that could justify such an action now.

        • really Ian? You can think of NO CIRCUMSTANCES? I can think of a number. Incidentally, I’m not sure why you would limit your pool to only “sane” and law abiding parents. What about the risks posed by (some) parents with acute or fluctuating mental health problems?

  7. I just have to write this tonight. I don’t have a blog so am commenting on here.

    What it feels like when your child’s contact is stopped suddenly. Tonight I am sitting here and I can see his jacket on the chair – he’s not here to wear it. His toys on the floor and the table – gathering dust. His new games console (he waited four years before we gave in to one) which arrived the other day, still boxed up and sitting on the floor – unopened. Mentally and physically he is not here. We can’t see him or speak to him or know if he is alright.

    This is the second time we have been through this in 2 months. Last time we had an email the night before saying he was being taken on school and on holiday and we wouldn’t see him for 3 weeks. I didn’t sleep at night for three weeks. When he came back he had been told bad things about us and was not the same and seemed confused. Gradually things were getting back to normal. Then contact was stopped again, just before the school summer holidays. His Mother says he has chosen not to come. We know that’s not true.

    But – I know this is happening to many people – usually Dads. And I wanted to write and express what that shock feels like. It is shock – a real shock – like your arms and legs have been chopped off and we both feel emasculated. We have cared for him since he was a baby. We are, apparently, no longer useful for childcare now he is older. He had two single parents when he was born. Has had two homes all his life, yet a badly worded court order, which we applied for to regain contact last time, ended up giving residence to a Mother formally as there is a line that says “where the child lives” and written next to it is “child lives with Mother”. And an agreement that contact should continue as before was not specified on the order, which just says “Mother will allow reasonable contact as agreed”.

    And we found that is not enforceable.

  8. PS Meanwhile there’s a little boy who can’t come to his home and has to pretend that is ok because that’s what Mum wants. So cruel for children.

Leave a Reply

Your email address will not be published. Required fields are marked *