The Ministry of Justice has finally allowed to be published a review it commissioned into the effects on the courts of Litigants-in-Person prior to the impact of the LASPO legislation.
I haven’t read the whole report, and just for now want to focus on a single aspect of it. I imagine that this is what a number of commentators will pick up on.
The report has been headed up by Liz Trinder of the University of Exeter, and that will already have alienated many fathers and their representative groups, as she is notorious for producing reports interpreted as anti-father, anti-shared parenting and pro-government.
Her findings are fairly predictable, then, on the issue of the use of paid McKenzie Friends, and she concludes that there needs to be a new practice direction and more regulation; she says, somewhat spitefully,
It is doubtful whether formal MFs (particularly paid MFs) are clearly of sufficient value to justify a charge for their services.
It is easy to dismiss her findings: many litigants have no choice in the matter and are very grateful for the support their McKenzies give them; some McKenzies are excellent and very knowledgeable; Trinder’s sample size of 3 is hardly representative, and so on.
Nevertheless, after an initial knee-jerk reaction to her comments, I have come round to the recognition that some of what she says makes a great deal of sense, though not necessarily for the reasons she gives.
McKenzie friends come in different shapes and sizes, but many of those who charge for their services and are registered with support organisations have themselves been through the system as litigants, usually in protracted cases with unsatisfactory outcomes.
My friend Stuart Graham has produced some very innovative and significant research to show that these men are likely to score highly on the subset scales of tests usually used to measure Post Traumatic Stress Disorder (PTSD) as a result of their experiences. Indeed, they carry levels of residual stress that would qualify them for medical intervention if their stress had been tied to experiences from war or disaster. They find the family justice process to be Kafkaesque in the extreme, where the presumption of innocence is reversed, due legal procedure unknown and, particularly if they were represented, they had no control at all over how the process developed.
Fathers who act as McKenzies will say they are seeking to help other fathers and to prevent happening to others what happened to them. I am aware from my own case, however, that working as a McKenzie is also an important part of the healing and rehabilitation process.
I studied family law, and subsequently wrote about it, because I needed to reassure myself that I had explored every avenue, and that the reason my case had failed so badly – I lost all contact for nearly 8 years – was not because I had missed something. I also needed to exorcise a few demons.
If I am really honest I would have to admit that I also wanted to give the system a good kicking. I think many fathers would sympathise with that.
What this means, however, is that no father whose case is still on-going, or has recently concluded, should be re-living his own trauma back in court, and potentially damaging the chances of another family of restoring their family life. Angry, depressed, traumatised fathers should never, ever act as McKenzies, and they need to stay out of the courts until their own cases are resolved and they have dealt with their anger. This may take many years.
Trinder writes that the two McKenzie friends in the study who had themselves a history of family litigation were either incompetent or were pursuing their own agenda (or both) and had a negative impact on the cases and on the administration of justice. In one case a McKenzie with alleged links to an unidentified ‘fathers’ rights group’ had encouraged a mother to agree to shared residence where it was not necessarily appropriate.
Another McKenzie was said to be ‘really angry with women’ which may be understandable in someone working their way through the healing process, but is clearly absolutely unacceptable in someone supporting litigants, risks prejudicing the case and risks discrediting the entire principle of using McKenzies in court. Already there is considerable pressure for regulation and restriction.
I am a huge fan of McKenzies. Some are brilliant and achieve better results than the average lawyer. Some are dreadful, and cause damage to cases which then has to be repaired by others, though the same can be said of many lawyers.
I support the idea of self-regulation by McKenzies and applaud what Ray Barry has done setting up the Society of Professional McKenzie Friends. McKenzies also need access to support so they can learn and develop their skills, and maintain a high standard. Lawyers need to accept the idea that their industry should be open to market forces and if it helps to drive down their very high costs that is no bad thing.
People like Trinder are dangerous, but those of us in the third sector support business should make sure we don’t give her any ammunition to bolster her position.