The investigation involved a firm of McKenzie Friends, who were involved in both public and private law family proceedings. Public law cases are family proceedings involving the state, such as adoption, whereas private law cases involve disputes within a family, such as divorce or child custody disputes.
Since the reforms to legal aid in 2013, there has been a rise in the number of McKenzie Friends in family proceedings. While legal aid is still available in most public law proceedings, it is rarely available in private law, so those without the means, or desire, to access solicitors often have to seek alternative assistance. McKenzie Friends are one such source. Anyone can act as a McKenzie Friend and no legal or other qualifications are required. McKenzie Friends help litigants in person with the court process, such as assisting with forms and attending hearings. When used correctly, they can provide reassurance and guidance for those who do not have legal representation.
The term "McKenzie Friends", and their role, stem from the case of McKenzie v McKenzie in 1970, when Mr McKenzie successfully appealed against the judge’s refusal to allow his friend, an Australian barrister not qualified to practice in England, to assist him in the Court. The Court of Appeal found that all litigants had the right to assistance, whether from a professional or otherwise, and that the judge should have allowed Mr McKenzie to benefit from such assistance, although his friend was not allowed to address the court without prior permission.
However, unlike Mr McKenzie’s friend, many McKenzie Friends are not lawyers and, unlike the legal profession, are neither registered or regulated. Many McKenzie Friends are now charging for their work, which is legal in England and Wales, but not in Scotland. The BBC’s investigation found one firm in London with countless complaints about its practices. In one instance, a father fighting for custody of his children paid over £12,000 as a result of being double charged, and for work the firm did not do. There are also reports of basic procedural mistakes, such as filling out the wrong forms for an appeal. In 2016 the firm’s directors were jailed for perverting the course of justice.
While such instances of abuse are thankfully rare, it demonstrates the importance of receiving high quality advice in family proceedings. Obtaining expert legal advice, especially at the initial stage of proceedings, can often be invaluable, as a solicitor can advise based on their understanding of the process and the real impact on the relevant parties.