About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Thursday, 29 March 2012

Guest Post by Shaun O'Connell: When LIP & McKenzie Meet the Legal Professionals

I am a self-employed McKenzie friend (Southern Family Aid) and such have had almost 15 years’ experience of the Courts. During this time, the ethos and attitude of the professionals has changed with regards to litigants in person (LIPs) and McKenzie friends.

There are now many McKenzie friends helping others some for free, some on expenses and some seeking payment. For those without recourse to legal aid and without sufficient funds for private representation, McKenzie friends are virtually the only form of legal help and support available.

For years the system has bemoaned McKenzie friends and persons acting alone for creating delays, not understanding the procedure, failing to follow directions or orders of the Court and in not assisting the Court as they should be.

As a McKenzie friend one has to remember that the person you are helping is a party to the case, usually a parent and that all professionals and parties have a duty to the Court. The relationship between the LIP and opposing parties can be fraught due to feeling under threat, worried about any decision made about their own children, being emotional, distraught and not thinking clearly.

The relationship between the McKenzie and the client is important but so too is the relationship between the McKenzie and the opposing party. Remember, the legal team – solicitors and barristers are there to carry out their role for their client. It is not personal and McKenzie friends need to behave the same way.

In my experience Solicitors and Barristers do not always follow their role to the letter, but usually do. The more experienced McKenzie friend by now accustomed the Court procedure, rigmarole and tactics, can help by defusing the emotion felt and at the very least smoothing over and bringing the two sides together where possible to mutual benefit and certainly for the benefit of the child or children in the middle.
I have had a few shocks such as being put down for talking with a Barrister in front of a parent (on their instructions as he had a psychiatric disorder that meant communication was difficult). The Barrister decided he was going to bully the parent on witness list needed for trial, which he duly did and two important witness were not included (but did get included at later date), or a barrister who misled the Court on the LA having to pay costs of a transcript from criminal proceedings contrary to an order of the Court of Appeal but overall I seem to be accepted as a quasi-equal with many barristers now preferring to talk direct to me and then I can explain at leisure to the client the issues raised.
I am aware of McKenzie friends (as I did at the outset) who become emotionally involved in cases and this needs to be avoided. The Court is about facts and law, and emotions merely hinder the process. The LIP needs assurance, to have confidence in the support given and to understand as best as possible the procedure being undertaken in order to make an informed decision.

Solicitor advocates and barristers have a duty to put their clients’ case in the best way possible, to raise issues for their client and against the opponent and that duty should be followed by McKenzie friends. Further all parties have a duty to the Court and McKenzie friends should keep this in mind. If the process is transparent and the arguments properly put to the Court, then the Court will have a better possibility of making a decision in the children’s best interests.

Solicitors and barristers will have to become accustomed to LIPs and McKenzie friends and there is no harm in the lawyers giving the LIP /McKenzie friend procedural advice to their opponent to smooth the process, rather than what sometimes happens where a LIP is left to founder on their understanding, sometimes gained erroneously, from others or the internet.

Solicitors and barrister need to remember the process (although adversarial in nature and semi-inquisitorial in public law), is about the parents/children or the assets of the family often gained over years of hard work. It is about a human issue rather than simple cement and mortar, and anything that can be done to make the procedure less painful then all the better.

Some legal representatives introduce themselves then proceed to either give smarmy looks or remarks. This is not helpful although having seen it too many times, for me it becomes water off a duck’s back, but it does inflame parents anger.

Some of the advice for the formal legal representatives includes;
1. Being courteous and helpful within the professional role.

2. Explaining to an LIP or McKenzie friend where they clearly do not understand procedure or the nuances of the law.

3. Keeping their own client calm and relaxed and not provoking the opponent.

4. Keeping their duty to the court first and foremost and not bending the rules against a naïve or less experienced opponent or being overly adversarial.

5. On opening putting both sides clearly and not using the moment to influence the Court unduly.

6. No unprofessional tutting or eye raising in Court.

7. Managing an agreement on issues or outcome where possible with the opponent remembering the decision to be made is ‘in the best interests of the child.’

8. Reminding themselves of Resolution’s Code of conduct and the Law Society’s Family law Protocol. Resolution’s code of conduct sums it all up:-

• Conduct matters in a constructive and non-confrontational way

• Avoid use of inflammatory language both written and spoken

• Retain professional objectivity and respect for everyone involved

• Take into account the long term consequences of actions and communications as well as the short term implications

• Encourage clients to put the best interests of the children first

• Emphasise to clients the importance of being open and honest in all dealings

• Make clients aware of the benefits of behaving in a civilised way

• Keep financial and children issues separate

• Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional

• Inform clients of the options e.g. counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings

• Abide by the Resolution Guides to Good Practice for more detail see http://www.resolution.org.uk/editorial.asp?page_id=26

Some advice for LIPs and Mckenzie friends includes;

1. The person you are helping in court is a parent and is liable to feel emotionally distraught. Explain the procedure before the day and keep them calm and informed of the process.

2. Arrange whatever procedure you use prior to the Court hearing and be prepared.

3. Do not get emotionally involved with the case, separate out your feelings and act professionally. Whether as LIP alone or with McKenzie friend the Court is there for facts and law.

4. Be polite and courteous with the opponent. Be willing to compromise where possible.

5. Seek a ten minute adjournment is you need to discuss the issues with LIP/ McKenzie friend.

6. Remember if the other side is represented their solicitor or barrister is a paid professional and have their duties, it is not personal even though it may feel like it.

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