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Relying on legal advice from unqualified persons is dangerous

CoNet Administrator

The UK is undergoing a revolution in how legal advice is provided. After decades of de-regulation which has resulted in many areas of law that were covered by solicitors, supposed improvements have allowed many who are not specifically qualified as lawyers to provide advice and assistance. Add in the ever-more restrictive legal aid scheme and it's no surprise that some people turn to non-lawyers for help. Enter the dangerous world of the "professional McKenzie Friend."

McKenzie Friends are a good thing, when the idea is applied as it was originally intended. Simply put, a McKenzie Friend is someone who helps a litigant in person, i.e. a person who is representing themselves in court proceedings. There are very strict limits on what a McKenzie Friend is supposed to do: he may

- assist in the preparation of documents for the court
- assist in the procedural aspects of proceedings (i.e. help make sure deadlines are not missed and the Rules of Court are adhered to)
- assist in the preparation for hearing
- attend the hearing and assist the litigant in person but is not permitted to speak.

And, most importantly, while, historically, a McKenzie Friend may be reimbursed his out of pocket expenses, he is not supposed to be paid.

The "industry" of being a McKenzie Friend began to develop in the 1980s when law centres, essentially charitable organisations or, sometimes, funded by local authorities, began to help those who could not afford legal advice and assistance. At that time the "Green Form" scheme allowed someone to see a solicitor for a short time so that their case could be assessed and, if necessary, an application for legal aid could be made. But the pay rates under the Green Form scheme were dismal and the pay rates under Legal Aid were as bad, if not worse, a situation that was exacerbated by two things:

1. the amount that could be earned from Legal Aid was uncertain: pay rates were terrible and even then the final bill could be reduced by a significant amount if, during a process known as "taxation" a judge considered that some work was unnecessary or should not have been performed. Moreover, the form which the bill was required to take for taxation was complex often bills were sent to "Costs Draughtsmen" who, in return for producing the bill in the correct form, would charge between six and ten percent, a cost that was not recoverable against legal aid. Many firms either ran on a shoestring budget or subsidised legal aid from other parts of the practice, in particular conveyancing.

2. Conveyancing was previously profitable because it was subject to a system of, in effect, a price cartel. The Law Society, then the regulator for lawyers, had fixed the cost of conveyancing according to a formula. When that system was abolished, two things happened: the amount that solicitors could charge for conveyancing plummeted, some firms advertising fees as low as GBP99.00. The second was that firms, unable to subsidise legal aid work from conveyancing began to pull out of legal aid entirely. Worse, as a move to de-regulate (which was a misnomer) the legal profession, a new profession was born: the Licensed Conveyancer. Often referred to as "solicitor-lite," the licensed conveyancers were, initially, "Legal Executives," a qualification that was allowed the holder to perform, subject to the supervision of a solicitor, many of the functions otherwise reserved to solicitors. In many small to medium firms, Legal Executives were the backbone of the practice, in many cases treated as quasi-partners and running departments. Their specialist skill and knowledge often exceeded the more generalist knowledge of principals in smallish firms. But, tired of being widely (and generally wrongly) considered the bridesmaids and never the brides, once the opportunity arose to become Licensed Conveyancers and to set up their own practice, many did. The lower operating costs of such a firm attracted quite a lot of conveyancing solicitors to convert and run their practices under that banner.

The end result of this was the end of cross-subsidisation from previously lucrative conveyancing. Legal Aid became difficult to get. Over time, the constraints on who could apply for legal aid and what the schemes covered increased even more. Increasingly, access to justice became something for those with money in the bank and, as the cost of legal practice soared, legal fees increased. There were more and more litigants in person and litigants in person don't know the law and they don't know the Courts' procedures and policies. Courts were becoming clogged because cases took far too long, both in terms of getting them to trial and then at trial itself. When the opportunity arose for litigants in person to have help, the Courts were only too happy to accept it and, in a quite astonishing move, approved the payment of fees to McKenzie Friends. This then led to what has been termed an industry but it's an industry that is to all intents and purposes unregulated beyond what the Court might allow for fees. Even more, rather than assisting in procedural matters and providing emotional support only, McKenzie Friends have, and this newspaper is not sure exactly how this happened, now become able to give legal advice, even though most have no legal training. What is sure is that it is not a profession although one or two groups have attempted to say their members meet the basic definition of profession by identifying themselves as members of a group.

The Courts might consider that they have an inherent jurisdiction to review the advice given by McKenzie Friends. But this leads to difficulty: there are rarely attendance notes or other documents that prove what advice was given and when. Correspondence is often at a minimum, even by e-mail or text message and "clients" rarely understand the importance of preserving those even if they exist. Those who are ill-served by McKenzie Friends have, to all intents and purposes, no recourse. Yes, in theory they can sue for damages but in practice that's not possible unless they obtain legal advice and assistance for which they would have to pay.

The latest case in which a McKenzie Friend is implicated as having caused not solved problems is a case in Ireland which relates to a case in England.

The case is tragic: a child deemed "at risk" by the local authority ("Lincolnshire"), on medical advice, in England was subject to an "interim care order" which meant that the child was subject to supervision by Lincolnshire and in its temporary custody. The child had gone home with her parents but, at the time Lincolnshire made an application for the Order, the child who was then two months old was an in-patient at a hospital. The mother was not permitted routine and regular access. "The court does not have power to impose conditions and it is the local authority which has the power to decide where the child shall live pending a final decision. As noted, in the present case, the authority decided to place the child with her paternal grandmother, with supervised access to the parents three times per week." It is important to note that "The interim order itself contained a clear and explicit prohibition on the removal of the child from the jurisdiction."

The case was due to come before the Court on 22th April. During the night before the hearing, the child's parents, who were unmarried but are a couple, entered the child's grandmother's house and took the child away. They left a note explaining that they were taking the child away to say "goodbye" before, as they thought, the child would be put up for adoption. A judge was consulted by telephone, the parents represented, in their absence, by a barrister although it is not clear how Counsel was appointed or who was paying for it. The Court made a number of findings in that telephone hearing, the most relevant of which was that the child be returned forthwith.

According to the judgment in the Irish court "On the 22nd April 2018, the respondents presented themselves at a Garda station in Ireland. They have averred in the present proceedings that they did so, having realised after their arrival in Ireland that they may be in breach of the English court orders. They have averred that they had received advice from a McKenzie friend in England, before their departure, that because the respondent father had ‘parental responsibility' rights, it would not be forbidden for them to leave England and Wales. It was averred that they had received contrary advice from a McKenzie friend after their arrival in Ireland, and decided to present themselves to the Gardai for this reason. They subsequently presented themselves to another Garda station in Ireland on the same date and explained that they had left England with their child who was the subject of a court order. The child was examined by a doctor and noted that the child's conditions was "good and normal" and "appeared well looked after". "

The case, reported at https://www.bailii.org/ie/case... , clearly shows that there are technical matters of law and that the plight of the parents arose out of what the Irish judge generously refers to as " a misunderstanding of the law both in England and under the Hague Convention."

This is not the place to go into the merits of the case other than to say that, in the judgment, the Irish judge, amongst much verbiage, delivered a point that, irrespective of every other argument, no matter how complex, is the determining factor.

"In the present case, the mother had acquired rights of parental responsibility automatically upon the birth of the child by virtue of being the child's mother; while the father had acquired rights of parental responsibility as a matter of law by virtue of having been included on the child's birth certificate. However, the English court subsequently made orders placing the child in the care of the applicant Council...It is the local authority (not the court) which decides where or with whom the child shall live)..no person may remove the child from the United Kingdom while a care order is in force." And the final blow "This prohibition from taking the child out of the jurisdiction was stated explicitly on the face of each of the interim orders made by the English court in the present case. There is no doubt at all, as a matter of law, that the applicant Council did on the 20th April 2018, and does now, have custody rights under English law, and within the meaning of Article 3 of the Convention. "

It is astonishing that anyone purporting to provide legal advice would not have grasped the statutory position nor the legal position as set out in Court Orders. Either the McKenzie Friend was inept in his understanding of the law or inept in his making inquiries of his "clients" when ascertaining the background for the purposes of giving advice.

This is only the latest case in a long line of those where McKenzie Friends have failed to meet the standards that those engaging them are entitled to.

There is only one question to address: the parents did, in fact, have access to qualified legal advice in England: how else could a barrister have appeared for them in the telephone hearing? Why they would choose to rely on an unqualified third party is a mystery.

Further Reading: https://www.bailii.org/ie/case...