Introduction
Take it from me: You don’t want to go to court entirely alone.
We call people who do so `Naked LiPs’ (an `LiP’ is a `litigant in person – someone who represents themself). Doing that can be as awkward as it sounds.
The prospect of going to court alone is probably scary even before you have set foot inside a court building. You’ve probably faced hostile words from an angry or upset ex partner, or maybe you’re hurting from being stonewalled. It may be you’ve been told `If you don’t like it – tough’. If you’ve faced an email or letter from their solicitor, it’s even harder. You’re seeing allegations you know aren’t true made against you making you look selfish, evil and possibly stupid too. They may lead you to think you should just give up and walk away – because walking into a court seems like stepping into a gladiatorial arena or a bear pit.
No one with any sense would want that, right?
The thing is that if you don’t have the money to afford a solicitor or barrister…or you do but you don’t trust them you are still going to need guidance in court.
This is where McKenzie Friends come in.
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What is a McKenzie Friend?
A McKenzie Friend (also referred to a MF) is a person who assists an LiP by providing moral support, helping with case papers, and offering guidance on court procedures. This guide explores the role of McKenzie Friends in detail, including what they can and cannot do, how they can assist with court representation, and how to choose the right one for your case.
If you’re new to the family court system you probably either a) have never heard of McKenzie Friends or you have, but you’re not sure how they work. This guide is going to provide all the information you need to know before deciding if you want to go it entirely alone, use a solicitor or opt for a McKenzie Friend to help you.
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Understanding the Role of McKenzie Friends
The term “McKenzie Friend” originates from the 1970 case McKenzie v. McKenzie, in which a husband representing himself in divorce proceedings was denied assistance from a friend in court. The ruling ultimately established that individuals representing themselves have the right to receive help from a McKenzie Friend. Since then, the role has grown in importance, particularly in family law cases where individuals frequently represent themselves due to the high cost of legal fees.
The term is a legal one. It’s not the name of a company, a person or an organisation (although there are ones that give the impression they’re some kind of regulatory authority).
McKenzie Friends don’t need to be legally qualified., Nor do they have to be professionals. Most McKenzie Friends charge for their services. There are other people who work on a voluntary basis but they are often extremely limited in what they can do. They can be friends, family members, or individuals with experience in court matters. Regardless of their background, their primary function is to support a litigant in person by helping them navigate the complexities of the legal system.
A McKenzie Friend’s support extends to preparing case documents, helping individuals understand legal terminology, and offering quiet advice during hearings. However, it is important to note that they do not have the same rights as solicitors or barristers. They cannot conduct litigation, act as a legal representative, or address the court directly. They cannot provide court representation. Their role is strictly supportive, ensuring that the person they assist is well-prepared and confident in their ability to present their case.
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Why use a McKenzie Friend instead of a solicitor?
Over the years, the number of McKenzie Friends has increased exponentially. When I started working as one back in the mid 2000s they weren’t that common. The reductions in legal aid, the increasing numbers of people going through family breakdown, the ineffectivness of mediation and a process that seems to pitch separating couples has all added fuel to the fire.
Ask most solicitors about McKenzie Friends and you’ll be told they’re not regulated, don’t have to be insured, don’t have to be qualified and they’re not legal professionals. Which is all true. They’ll also say that for this reason, people will only use a McKenzie Friend if they can’t afford a solicitor.
The feedback we’ve received over the years says something different however.
Many people do use a McKenzie Friend due to cost but a large proportion of litigants who can afford the huge legal bills incurred by using a solicitor or barrister choose to represent themselves with the assistance of one.
The experience of using a McKenzie Friend is not the same as being represented by a solicitor. Many people who go down this non-traditional route leave feeling empowered, heard and believing they maximised their chances of a favoured outcome. Compared to sitting mutely in a court room, feeling excluded from decisions that are going to affect their lives, children and finances.
A McKenzie Friend isn’t a solicitor and vice versa. There are up and downsides to both. In my experience, most people are more than equipped to represent themselves with the right McKenzie Friend by their side – but it isn’t for everyone. So do you research on both before making a decision.
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The Rules (part 1)
There are clear rules that explain everything concerned with McKenzie Friends – rules explained by the court.
Most of the rules are fairly common sense and clear. There are grey areas (I mention that elsewhere in this post) and this whole post talks about them one way or another.
Anyone who wants to act as a McKenzie Friend should provide a copy of their CV to all parties concerned as well as the court. When I assist people, I send the litigant in person I’m helping an electronic copy and ask them to send it to the court and other party’s solicitor around a week before the hearing. On the day of the hearing I ask them to take paper copies too – which we’ll give to the usher to give to the magistrates or judge before the hearing, a copy for the other party (or their solicitor) and also any CAFCASS officer or social worker involved with the case.
It’s common courtesy to do this – and will reduce the discussion about who you are, what you’re doing and whether you should be there.
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The Rules (part 2)
My client should also provide a `letter of application’ to the court saying they intend to bring a McKenzie Friend to the hearing with them. This should be sent with the CV to everyone concerned (and copies should be brought on the day). The sample one I provide includes case law concerning McKenzie Friend. But this is often `over egging the pudding’ because McKenzie Friends are very common and their role is well established in law nowadays. They’re almost certainly not needed these days (and the court will usually provide a form for the litigant in person to complete instead of this) – but I’m a `belts and braces’ kind of guy so I’ll do this just to be sure.
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How McKenzie Friends Help with Court Representation (part 1)
As I mentioned in the intro to this post for many people, the thought of appearing in court without legal representation is intimidating.
For others they `want to do it properly’: If you’re going to court, you get a solicitor. That’s just how it works. Court representation is how you do it. If you speak to many solicitors and judges they’ll tell you that it’s best to use a solicitor or barrister for a variety of reasons (I’ll go through them later).
It’s true. The legal system is complex, with rules and procedures that can be difficult to understand. It’s understandable that with such a complex subject you need someone who knows what they’re doing by your side during your case. McKenzie Friends help bridge this gap by providing valuable assistance before, during, and after court hearings.
Before the hearing, McKenzie Friends assist litigants in person by helping them organize and review their case documents. Most of the work and `action’ in a case takes place long before you even get close to a court building.
This can include preparing witness statements, drafting position statements, and ensuring that all necessary paperwork is in order. They also help litigants in person understand their rights and obligations, ensuring they are well-prepared for their court appearance.
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How McKenzie Friends Help with Court Representation (part 2)
On the day of the hearing a McKenzie Friend can be by the side of the litigant in person every step of the way from the moment they go to court.
During the hearing itself, a McKenzie Friend sits beside the litigant in person, offering moral support and quiet advice. They can also take notes. I’d go further and say you will need someone next to you – it’s hard to speak, think and write at the same time while being in a tense, emotive environment while not being completely clear about what is going on.
Additionally, they help the litigant understand what is happening and suggest points they may wish to raise. However, they do not have the right to speak on behalf of the litigant unless specifically granted permission by the judge, (which can be rare). An experienced McKenzie Friend will prepare the litigant in person for this however and it’s seldom a problem.
After the hearing, McKenzie Friends can provide further assistance by helping litigants in person review the outcome and determine their next steps. This can include explaining the judge’s decision, discussing potential appeals, and helping prepare for future hearings if necessary. Their support can be invaluable, particularly for those unfamiliar with legal processes. They’ll `debrief’ the litigant in person and be able to provide hearing notes if needed.
Finally – they can check the order made matches what was said in the hearing and discuss the options if it isn’t right.
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Choosing the Right McKenzie Friend
Selecting a McKenzie Friend is an important decision. Since they will have access to sensitive case information and play a key role in providing court support, it is essential to choose someone trustworthy, experienced, and reliable.
While McKenzie Friends do not require formal qualifications, some have extensive experience in court matters and can offer valuable insights. Many professional McKenzie Friends have backgrounds in law, social work, or advocacy, making them particularly well-suited to provide guidance. However, there are also many individuals who offer McKenzie Friend services without proper knowledge or experience. So it is important to conduct due diligence before choosing someone to assist you. There are also people out there who have beliefs – shaped by their own views on their own case, gender issues, shared parenting, domestic violence and more – who may not align with what you set out to achieve.
When selecting a McKenzie Friend, it is important to ask about their experience with similar cases, their understanding of the legal process, and their approach to providing support. Regarding fees, it is advisable to clarify their pricing structure in advance to avoid unexpected costs. It’s a good idea to check for reviews or testimonials from previous clients. These can provide valuable insights into their reliability and effectiveness.
McKenzie Friends should also adhere to ethical guidelines. They should always act in the best interests of the litigant in person, maintain confidentiality, and avoid conflicts of interest. If a McKenzie Friend appears to be making unrealistic promises or pressuring you into decisions, it may be a red flag that they are not acting ethically.
Do your research. Check out social media posts. Watch YouTube videos and content on other platforms. Look at reviews.
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The Benefits of Using McKenzie Friends
For many litigants in person, McKenzie Friends provide a lifeline.
Traditional legal representation is expensive. And not everyone wants to use a solicitor or barrister. In these cases, McKenzie Friends offer an alternative, ensuring that individuals still receive support in court.
McKenzie Friends empower litigants in person by helping them take control of their own cases. With their assistance, individuals gain a better understanding of the legal system, develop confidence in representing themselves. This empowerment is particularly valuable in family law cases, where emotions run high, and individuals often feel overwhelmed.
Another key benefit of McKenzie Friends is that they reduce the stress associated with legal proceedings. Going to court alone can be an isolating experience, but having someone by your side can make the process more manageable. Knowing that you have support can help ease anxiety and ensure that you stay focused on presenting your case effectively.
McKenzie Friends can also contribute to better case outcomes. With their assistance, litigants in person can present well-organized arguments, submit necessary documents correctly, and follow proper court procedures. This improves their chances of achieving a favorable result and avoiding costly mistakes.
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Common Misconceptions About McKenzie Friends
There are several misconceptions about McKenzie Friends that can lead to confusion. One common myth is that McKenzie Friends are the same as solicitors or barristers. While they provide valuable support, they do not have the same legal standing and cannot formally represent clients in court. Another misconception is that McKenzie Friends can speak on behalf of litigants in person. This happens but this is only allowed in exceptional circumstances with the judge’s permission.
Some people also believe that McKenzie Friends can provide legal advice. While they can offer guidance on court procedures and suggest strategies. But they cannot offer formal legal advice in the way a solicitor or barrister can. Litigants in person need to be aware of these distinctions so they can set realistic expectations when working with a McKenzie Friend. Although it’s important to understand that what constitutes `advice’ is a grey area. But an experienced McKenzie Friend will be able to help you out here.
Additionally, there is a misconception that McKenzie Friends are completely unregulated.
It’s true – there is no regulatory body that deals specifically with them. But they are still expected to adhere to ethical standards. In hearings, a court will expect the McKenzie Friend to provide a CV. It will also ensure they are clear about their roles and responsibilities and are helping rather than hindering proceedings. In this respect – the court has a wide ambit of discretion. Judges and magistrates understand that a court case can be stressful. Someone providing good quality assistance is only going to help. That said? A McKenzie Friend is permitted to attend a hearing on a hearing-by-hearing basis and can be removed if it’s considered appropriate to do so.
But – they cannot provide court representation. Only a solicitor or barrister can do that. If you need someone to represent you, a McKenzie Friend isn’t the right person for you.
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Who can be a McKenzie Friend?
I’m wondering if this should be in the previous paragraph – the one about misconceptions. Not everyone can be a McKenzie Friend.
Sort of.
If you’re going to a court hearing and you want someone by your side it’s reasonable enough you’re going to want someone who is familiar to you – a friend or a relation. They’re also (probably) not going to charge you, unlike most professional McKenzie Friends.
Strictly speaking though?
Anyone with an `interest’ in your case shouldn’t be your McKenzie Friend…which does mean friends and family members. It also includes someone who is representing an organisation of any kind (although it’s important to say anyone is free to be a member of an organisation including some of the types I’ve mentioned above).
If you do take someone with an interest in your case you’ll probably get away with it. Probably. If the judge is a stickler for rules however – they could find themselves excluded. This is also the case if the person you’ve taken with you is a witness in your case (i.e. they’re going to be cross-examined), if they’ve been heavily involved in proceedings or the other party convinces the court they shouldn’t be there.
On that last point?
The court will ask if they object to your McKenzie Friend (whether they’re a friend or family member or not). The court is less likely to accept them if they do have an interest in the case.
With this in mind, consider if this is a gamble you are happy to take. If it goes against you, your McKenzie Friend could spend the hearing sitting outside in the waiting room, instead of being by your side. If you need someone by your side, but you have no one you can take court representation is the way forward for you.
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Can I use a McKenzie Friend to help me with paperwork and a barrister in court?
The answer to this is a straight yes. A McKenzie Friend can help you with all aspects of paperwork and you can use a barrister in court if you don’t want to speak for yourself.
In a traditional model you’ll use a solicitor to deal with the paperwork side of things and then a barrister in a hearing (although solicitors can do that too). But a solicitor will be unwilling to represent you in court if they’ve not been involved in the paperwork.
If you’re going to use a barrister to represent you in court while using a McKenzie Friend for the stuff outside of a hearing you’re going to need a `direct access’ barrister. Many barrister only work after being instructed by a solicitor – but the `direct access’ variety don’t.
It’s something we’ve done before – it’s a great compromise between using a McKenzie Friend throughout or using a solicitor for the whole case. It enables you to be tactical and only pay legal costs when you really, really feel you need then.
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Is a McKenzie Friend allowed to charge?
This is another misconception. Litigants in person, solicitors and judges have told me McKenzie Friends aren’t allowed to charge. And been asked by the latter how much I am charging too!
But the law is clear – a McKenzie Friend is permitted to charge.
As I say elsewhere, while there are free McKenzie Friend (although they’re rare). The fees of the ones who charge vary wildly. There are some who work for expenses only but others who charge fees that aren’t too much lower than a solicitor.
How they charge varies too. Which is why you should be clear about this before you engage one.
Some work on an hourly rate, charging a retainer – similar to the model many solicitors use. Others will offer a fixed fee. Others still (like us) provide a pay-as-you-go model.
There are two things more things you need to know about McKenzie Friend charges too:
- As they’re not solicitors they cannot accept legal aid.
- You cannot usually recover the costs of your McKenzie Friend against the other side.
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Conclusion
McKenzie Friends can provide absolutely invaluable support. From helping with case preparation to offering guidance during hearings, they play a crucial role in assisting litigants in person. While they do not have the authority to act as legal representatives, their assistance can make a significant difference in how individuals navigate the legal system.
A good one is worth their weight in gold, providing assistance while both putting the litigant in person in the driving seat. They’re also a cost-effective alternative to a solicitor.
Choosing the right McKenzie Friend requires careful consideration however. It is important to select someone with relevant experience, a strong ethical approach, and a genuine commitment to helping you succeed. By doing so, you can ensure that you receive the best possible support in your legal proceedings.
If you are facing a court case without court representation, remember that you don’t have to go through it alone. A McKenzie Friend can provide the guidance and reassurance you need to navigate the process with confidence.
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