In the judgment from a case called H (Children : exclusion of Mckenzie friend)  EWFC B31 (05 March 2017), Her Honour Judge Atkinson sets out in detail, why permission to appeal an order banning a paid McKenzie friend from “helping” a mother involved in a dispute about her child being dealt with in the Family Court, was refused*.
The name Bright might ring bells in connection with dodgy McKenzie friends. But this is a different Mr Bright than the David Bright who was convicted last year of perverting the course of justice by submitting a false report in a similar Family Court case.
This Mr Bright had been heavily involved over a long period in the running of the mother’s case, in sending and receiving correspondence and liaising with professionals. It was said that Mr Bright communicated on M’s behalf with F, NYAS, the court, and with the various agencies involved with the family such as Social Services departments and the children’s schools :
“These communications have variously been by letter, by email and by telephone conversation and have been on the basis that he is “acting” or speaking on behalf of M – in other words, he is communicating her wishes and intentions. There is rarely any communication from mother herself.”
Such was the level of involvement that Mr Bright at one point became erroneously marked on the court file as the solicitor on the record as acting for the mother. What is described in the judgment and summarised above sounds very much like the conduct of litigation (which is a regulated activity that only the legally qualified are allowed to perform), although the judge stops short of saying as much. Whatever one calls it, that involvement, the court ultimately concluded was very problematic. And it wasn’t helping the court to sort out the issues.
The judge begins her judgment by making a point of saying that not all McKenzie friends are a problem (although from a statistician’s perspective it appears that McKenzie friends called Bright seem to be a poor bet) :
Nothing in this Judgment is to be taken as intended to undermine the value to the courts of third parties who offer support and assistance to litigants in family proceedings. There are many occasions where the help and support of a McKenzie Friend can greatly assist. That is why the family courts in particular have generally welcomed McKenzie Friends. However, with the withdrawal of public funding there has been a marked increase in the use of ‘professional’ McKenzie Friends, as here, and there is a danger that the boundaries between the regulated and non-regulated representative is becoming blurred. The facts of this case illustrate how significant the impact can be where there is no clear understanding of, or respect for, the limitations on their role by the third party offering non-regulated legal assistance. Meanwhile, the person left to police the non-regulated representative is the Judge with the result that precious and hard pressed judicial time is diverted to matters of third party involvement when the focus should be the children.
The point that the judge makes is that those McKenzie friends who don’t understand the limits of their proper role and who insist on overstepping the mark can absorb valuable attention and resources.
The law about McKenzie friends and the broader context of the withdrawal of legal aid in this field is set out. The judge reminds herself of the fact that permission for a McKenzie Friend to act may be withdrawn where
…it might undermine or has undermined the efficient administration of justice. Examples of circumstances where this might arise are: i) the assistance is being provided for an improper purpose; ii) the assistance is unreasonable in nature or degree; iii) the MF is subject to a civil proceedings order or a civil restraint order; iv) the MF is using the litigant as a puppet; v) the MF is directly or indirectly conducting the litigation; vi) the court is not satisfied that the MF fully understands the duty of confidentiality.
The fact that Mr Bright just didn’t get what he was doing wrong was demonstrated by the 900 page bundle of his correspondence submitted to the court in his support. The judge said :
I do not intend to deal with all of the points made. Suffice to say that in this appeal I have given Mr Bright the opportunity to respond to the specific criticisms made of him in places where he feels that his explanation would have made a difference to the outcome. I appreciate that at times this has bordered on him raising fresh evidence but I felt it important to let him have his say. I have examined each of his responses with care but have to say that far from undermining the decision of the DJ, his comments lend support to it. They provide yet more evidence, in my view, of Mr Bright’s fundamental misunderstanding of the limitations of his role whether as McF or intermediary and his lack of insight into the detrimental impact of his involvement on others involved and the case. The problem is that the correspondence Bundle is incapable of interpretation in a way which would save Mr Bright from the DJ’s criticisms of him. [our emphasis]
Oh dear. When your best points are used to demonstrate how wrong and misguided you are you are having a very bad day at the office. Remember, this gentleman makes a living out of this stuff, from a lady who was not eligible for legal aid. The judge gives some specific examples of inappropriate correspondence in her judgment, before saying that
This pattern of F asking Mr Bright not to contact him and Mr Bright responding saying he has no choice but to accept his communications, has continued throughout the litigation. These are unpleasant exchanges and yet they are produced by Mr Bright himself and relied upon by him to demonstrate that the F was communicating with him whilst failing to see how inappropriate they are. A legal representative communicating with F in that way would be severely criticised.
Another example given is of the McKenzie liasing with a social worker to get a report altered.
Another example is Mr Bright’s assertion that the DJ was wrong when she says he had made “substantial changes to a report” – at E11. Mr Bright does not deny the changes but categorises them as “typos” thereby missing the point. In fact, DJ Major was not wrong to categorise those changes as “substantial”; in litigation terms, they were. The email in question sees Mr Bright communicating directly with the SW who has prepared Core Assessments in respect of the children. In the email Mr Bright is asking if he can make amendments to the copy of her Core Assessment before it is handed to the Judge. It is utterly inconceivable that it would ever be right for one litigation party to amend the evidence produced by a professional witness – even if it was just a typo. The phrases he suggests need altering are the identification of who had said certain things – so where it was written that the mother had said something, he suggests changing that to read that the child had said it. I can see that those amendments were accepted by the author but that does not mean they are insignificant or that it was for Mr Bright to make them. The father had the right to know that the SW had changed them. He might have had questions about why they were wrong in the first place. He might have wanted to suggest that this demonstrated that they had come from the child and not the mother. He might not have succeeded but the point is he never got the chance because Mr Bright was perfecting the final copy before he ever got to see it. This would be unacceptable behaviour for a solicitor.
In addition, this communication is between just the two of them. The F is not copied in – a common occurrence when Mr Bright is writing to third parties about the case. This is another way in which DJ Major considers that he exceeds his role. In his skeleton Mr Bright argues that DJ Major misunderstands “the way in which the local authority operates” preferring to speak to people separately “so that matters can be put to them openly without fear of intimidation from the other”. Mr Bright is wrong. Whilst there may be a few occasions where parents are interviewed separately for the reasons that he gives, the record of those exchanges is always made available to the other but this exchange and the vast majority of the over-friendly exchanges between Mr Bright and the SW do not warrant that treatment and even if they did they did not warrant being concealed from the father. It is Mr Bright’s inability to understand the significance of this even now that demonstrates yet further the lack of insight he has into the limitations of his role and the impact his exceeding those limitations has had upon the proceedings.
The pattern of behaviour revealed in just those two examples is repeated throughout the correspondence bundle.
We agree that what is described is unacceptable behaviour that could cause unfairness. Again, good practice would require that if a solicitor requested factual corrections to be made that this should be disclosed to the other party, and correspondence with the person writing a report should be cc’d to the other party or their own lawyer. But the responsibility to disclose such exchanges is a joint one – the report writer should certainly be frank about such exchanges having taken place or risk accusations of having allowed themself to be “nobbled”, and it appears from the judgment that this probably didn’t happen – there is no criticism in the judgment of the professional who should have known better (though it is possible that this happened “off set” and is not in the judgment because it was not directly relevant to the appeal).
It’s worth remembering that the duty of full and frank disclosure in family cases applies to litigants in person too, and litigants in person rarely appreciate the need to copy correspondence with the court in to the other party – they are probably equally likely to make the same mistake around “private” correspondence with a professional. But it is one thing for a litigant in person to make such a mistake, and quite another for someone in receipt of a fee to do so, without even realising it is unacceptable.
The original judge had concluded that the evidence demonstrated overwhelmingly that Mr Bright was affecting the efficient administration of justice and she was therefore quite justified in stopping him from continuing to play a role in the court case.
The judge ends with this :
…during this case the McKenzie Friend in question has on occasions described his role as ‘quasi-solicitorial’. There is no such thing as ‘almost’ a solicitor. You are either a solicitor or you are not. Significantly, if you are, you are bound by your professional duties and you are externally regulated. Whilst a “professional McKenzie Friend” is not subject to regulation in the way that barristers and solicitors are, the powers utilised by DJ Major in this case are available to ensure that the limits within which non-regulated third parties are permitted to operate are respected and the absence of professional rules does not permit the interference with justice…Nevertheless this has taken up hours of court time when the focus of the litigation should have been the two children subject to the applications. If ‘professional’ McKenzie Friends are to assist parents in such emotionally fraught cases they must be sensitive to these issues and mindful of the dangers of becoming an irritant hindering the process rather than giving the assistance that the courts have been used to in the past. [our emphasis]
Recent research about paid McKenzie Friends showed that there are indeed some McKenzie Friends out there who offer a service which litigants in person find valuable. But it also highlighted some of the risks and difficulties. Litigants need to be very careful before spending money on someone who may have more confidence than actual knowledge and who may inadvertently damage their case without realising what they are doing.
A word or two about the role of lawyers
The impact of the absence of lawyers is noticeable to the trained eye at least, in that the judge has incorrectly cited Civil Procedure Rule 52 as being the framework for this appeal, when in fact Family Procedure Rule 30 applies to this sort of appeal (A first appeal in the Family Court). Fortunately little turns on this point as the rules are very similar, but it is a mistake that almost certainly would not have happened if there had been a lawyer participating in the appeal hearing. It is an unusual feature of this case that although the children were made parties and represented by their own lawyer through NYAS, that lawyer does not appear to have participated in the appeal. Although we think they may well have taken a decision to not actively participate in the appeal because they wanted to remain neutral and were trying not to waste public funds, this fortunately benign mistake does remind us that sometimes the involvement of a lawyer on behalf of the children to help direct the judge towards the correct law and procedure can be critical.
The second point we make about lawyers is this : lawyers don’t always get it right either. Sometimes they are incompetent, lazy or rude step over a line.
We think it is probably fair to say that a legal representative whose correspondence found its way to the court may well be criticised for such correspondence, but in the ordinary course of events such correspondence would not be in the court bundle and may well pass without adverse remark by a judge. The writer has certainly seen quite inappropriate correspondence between solicitors and from solicitors to litigants in person from time to time that does not necessarily result in sanction – although in one recent case it certainly did : a solicitor was fined £5,000 for sending very inappropriate correspondence including calling a litigant in person a fisherwoman (from the reports it doesn’t seem to have been a family solicitor or member of Resolution whose code of conduct says correspondence should not be inflammatory).
This post is not trying to set up McKenzie Friends on one side of a bright line and lawyers on the other, but to highlight the particular dangers associated with a McKenzie friend who isn’t singing from the same hymn sheet as the court. Where a lawyer misbehaves there is some form of redress in the form of complaints processes and regulators and (more often than in the case of a McKenzie) indemnity insurance. When things go wrong with a mckenzie the exposure of the litigant to risk is generally greater than if a lawyer were responsible for the same misconduct. There is a useful blog post by two members of The Transparency Project about McKenzie friends here.
*The appeal was a little bit more wide ranging than this single point, but that is the main point and the one on which we focus in this blog post.
Feature pic by Lefteris Heretakis on Flickr (Creative commons licence) – thanks!