When families fall apart, do they fall too easily into court?
Posted on 15th November 2022
When families fall apart, do they fall too easily into court?
An analysis of a speech given by Sir Andrew McFarlane (AM), President of the Family Division, on October 31st 2022, at The Worcestershire High Sheri's Lecture 2022 at the University of Worcester
AM suggests that separating parents should try almost anything before turning to the Family Court, and that taking proceedings to the Family Court should be the option of last resort. Interestingly, throughout his entire speech of nearly 7000 words, not once does AM mention McKenzie Friends. Perhaps by using the words "almost anything", he means to suggest that McKenzie Friends are not a viable option or alternative to solicitors, but we have daily proof that this is not the case. The general opinion of McKenzie Friends within court, mostly held by solicitors or barristers, is that they are untrained members of the public who do not help the proceedings to move forward, rather that they hold up proceedings by not knowing the correct procedure or suggest things to the respondent or applicant that inhibit positive progress within the case. We, as McKenzie Picave, have found more and more that as we become known by judges and counsel members, due to attending hearings in the same courts around the country, that our reputation precedes us, and we are oered liberties not typically aorded to McKenzie Friends. McKenzie Friends are not allowed to speak during hearings, they can only oer notes or quiet advice, however we have found that as our status as qualified professionals becomes more well-known, we are allowed to speak freely, in order that the case can move forward eciently. This indicates to us that by describing yourself as a McKenzie Friend, you open yourself up to prejudice, because we have only recently begun to be respected by counsel members now that they have got to know us, and see our skillset. They see that somebody brings a McKenzie Friend with them, and immediately go on the defensive, requesting that the judge does not allow them audience or that they cannot speak a single word because 'that's not allowed'. Perhaps they should learn that you cannot judge a book by its cover.
AM mentions in his speech that since legal aid has been removed from family law, many people are not represented by a lawyer, and that judges frequently see hearings where both parties are unrepresented. He goes on to say that the backlog in the courts is significant and unwelcome delays are inevitable. It seems to us that if McKenzie Friends were actively encouraged in the courts, then fewer people would be unrepresented, and if those McKenzie Friends were professionals, well-versed in procedure, then perhaps the backlog would begin to decline as more cases were brought to a swift conclusion. It is possible to argue that solicitors work in their own self interest, and actively drag out proceedings so that they can charge the client for more of their time. (We do have a youtube video where we discuss this very subject, so if you are interested in that, the link is at the bottom of this article). By being able to charge many thousands of pounds per hearing, it does not exactly encourage eciency on the part of the solicitor. As McKenzie Friends charge far less, could promoting these professionals in the courts cause a change in this culture? This is complete speculation, but you see our point.
AM ends his speech by restating his belief that there are many dierent options in place to assist separating parents to resolve issues without coming to the Family Court. He says, "I hope that what I have described during this address has more than demonstrated that there are many dierent options that are already in place to assist parents to sort any issues out in a much less acrimonious settings, and more swiftly, than coming before a judge or magistrate in court proceedings.". He outlines the options available, such as mediation and Separating Parent's Information Programmes (SPIP), however it does cause us to wonder what he believes people should do if they have no choice but to go to court. The answer, of course, is to instruct a professional McKenzie Friend, but that isn't something AM would ever recommend. We believe, at least based on our experiences, that is it time the courts respected McKenzie Friends as viable options for people who cannot aord solicitors, particularly in times such as these with the cost of living crisis. AM says that, "Each case is determined on its own merits with the court giving paramount consideration to the welfare of the child.". We believe this can only be achieved if a client is assisted in court by someone who is acting in their best interests, and this is not an attitude we have seen with solicitors, who often encourage acrimony to increase time spent in court, and therefore the fee they collect.
It is always best to consider the agenda of a person when reading something they have written. We are biased. We are biased in favour of McKenzie Friends due to the simple fact that we are McKenzie Friends. It would be a surprise if AM had written this speech himself, however it is not a stretch to assume he is biased against McKenzie Friends. This is not to say that we don't agree with him though. It is always best to try and avoid time in court if possible, and this is achieved with mediation or SPIPs, or simply talking to each other, however this is not always possible, and the choice that then needs to be made is where we and AM part ways. We, as McKenzie Picave, currently live in somewhat of a 'No Man's Land', where counsel members struggle to accept us as McKenzie Friends because we are good at what we do, and this doesn't match the idea they have in their head. Regardless of this, we will continue to forge a path, and if you are heading into a situation where a trip to court is on the horizon, why not get in touch today, and we can show you how we can help.
If you would like to read Sir Andrew McFarlane's speech in full, you can find it by clicking here https://www.judiciary.uk/speech-by-the-president-of-the-family-division-when-families-fall-apart-do-they-fall-too-easily-into-court/
As mentioned in the article, we have a youtube video in which we discuss solicitors and how they may not be acting in your best interests, which you can find by clicking here https://youtu.be/AgDzYRBlEo8
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