McKenzie friends
Biased advice
As I mentioned here on Friday, Dr Tatiana Tkacukova, Senior Lecturer in English Language at Birmingham City University and Professor Hilary Sommerlad, Leeds Law School, have carried out a study assessing the quality of advice handed out by advisors on online forums and social media platforms. It does not make particularly happy reading, finding “that online advisors often delivered biased advice and suggestions reflecting personal anti-court and anti-social services viewpoints.”
The study was based upon the advice handed out on 170 Facebook threads by thirty different McKenzie Friends. McKenzie Friends, for the benefit of those who don’t know, are non- or former lawyers, who give advice to litigants in person, sometimes for a fee.
We are told that the research “showed instances of McKenzie Friends advising parents to ignore the advice of lawyers, suggesting courts were institutionally unfair and in some instances advising people to act against the advice of their lawyers while promoting the services of McKenzie Friends”, and that: “Words used to describe Family Courts and social services include ‘gender-biased’ and ‘disgrace,’ while social services are also accused of not delivering, asking ‘stupid’ questions and being incompetent.”
To provide a little balance, I should say that in a report on the Birmingham City University website Dr Tkacukova mentioned that many litigants had had “positive experiences”, although she did not elaborate. I can also confirm that I have heard good reports of some McKenzie Friends (although even then anyone can make a mistake and, unlike lawyers, McKenzie Friends do not have the protection of indemnity insurance).
Nevertheless, this study is extremely concerning. A partial explanation of the source of bias perhaps comes from the breakdown of the background of the thirty McKenzie Friends. We are told that: “of the 30 advisors online only two were ex-lawyers, with three being former Litigants in Person, 11 active fee-charging McKenzie Friends and 14 being McKenzie Friends moderators.” (I confess that I don’t know what a ‘McKenzie Friend moderator’ is.)
Perilous seas
The problem, of course, stems from the decision of the Government back in 2013 to abolish legal aid for many matters, including most private law family cases. That has, of course, meant that litigants who cannot afford advice from properly qualified and regulated lawyers must either fend for themselves or throw themselves upon the mercy of unqualified and unregulated advisers, some of whom are, quite frankly, no more than charlatans. To be the recipient of bad or, worse, biased advice, is to add insult to injury.
Dr Tkacukova hits the nail on the head and suggests a way forward when she says:
“McKenzie Friends provide a much needed service to offer advice and support to those for whom the legal system and the language of law is completely alien.
“The negative portrayals of the courts and social services, alongside the advice to ignore specialised legal advice show a worrying trend towards personal viewpoints and agendas clouding impartial and objective support.
“To help protect the many vulnerable people in these cases, we need to see a move towards a more regulated environment with increased transparency to make sure that people know the information they are accessing and the legal qualifications of those advising them.”
Agreed, although (and with respect to the ‘good’ McKenzie Friends) any such regulation will still, of course, provide the less well off with a second-rate service compared to the advice of qualified and regulated lawyers.
There is, of course, another option: to restore legal aid. Sadly, however, there was nothing in the recent Conservative Party manifesto to suggest that they have any intention of doing this. It seems, therefore, that our two-tier justice system, with one level of service for the better off and a lower level of service for the less well off, is going to be with us for the foreseeable future.
Sadly, all I can say is good luck to any litigant in person trying to navigate the perilous seas of unqualified advice.
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