Submission from Deborah Mahmoudieh as a member of the Association of McKenzie Friends and McKenzie Angels in relation to present proposals for government reforms on the presence and practice of McKenzie Friends in UK courts and society:
Terminology: Should the term ‘McKenzie Friend’ should be updated to something that is easier to understand, like ‘Court Supporter’.
“What’s in a name? That which we call a rose, by any other name would smell as sweet.”
The term ‘McKenzie Friend’ has its roots in British legal history and refers to a specific legal case: 1970 case McKenzie v McKenzie: “In that case, the husband was representing himself and wanted the help of someone who was not legally qualified in the English Courts. His request was refused. However on appeal, it was determined that having moral support in Court was part of being entitled to a fair trial under the European Convention on Human Rights. Any such assistants/supporters are therefore now referred to as ‘McKenzie Friends’.”
Since the title McKenzie Friend is now widely known and with McKenzie Friends currently assisting litigants, a change in the title may itself, create confusion: The suggested term ‘Court Supporter’ is not entirely accurate as the McKenzie Friend’s role is not to support the court but the litigant.
Developing rules of court: should a Practice Guidance be replaced with formal rules of court?
McKenzie Friends *Practice Guidance is designed to operate in synchronicity with established court rules, to suggest these are replaced with ‘formal rules’ implies an intent to limit the role of McKenzie Friend:
1) Many McKenzie Friends never appear in court, their advice and assistance not only helps many to avoid court proceedings, often, their legal assistance is toward matters outside of courts i.e., writing letters etc., to other official bodies on behalf of those in need.
2) Although Citizens Advice (CAB) fulfils the general public’s need for expert assistance on certain issues, McKenzie Friends are regularly being called upon to assist due to severe cuts in funding for CAB’s, this more officially recognised resource is becoming increasingly difficult to access for many in need:
There is a risk that formal court rules may restrict McKenzie Friends assistance in matters outside of the courts.
*McKenzie Friends Practice Guidance Notes: http://www.familylaw.co.uk/system/uploads/attachments/0000/8125/McKenzie_Friends_Practice_Guidance_July_2010.pdf
Providing notice: should there be reforms to help LiPs understand what roles McKenzie Friends can play and any limitations on what they can do?
Addressing the issue of ‘notice’ could equally work in favour or against LiPs, for example, the public are presently being asked to specifically request that their medical details are not shared with other organisations. One can argue that since not all are aware of this ‘notice’, many medical details will be shared without the express wish or knowledge of the individual concerned and therefore, to include such an infringement of rights within a ‘notice’ is effectively, to deny the rights of all who remain unaware of the notice.
In a multicultural nation with many using English as a second language, such ‘notice’ as is given, is not always known or else, properly understood, by all who are affected by the content. There is the added fact that since McKenzie Friends are legally and ethically bound to both stand under and uphold, the law and, are not ‘covered entities’, for what legal or ethical purpose is ‘notice’ necessary?
Health Insurance Portability and Accountability Act of 1996/HIPAA Rules apply to covered entities and business associates:
The Privacy Rule provides that an individual has a right to adequate notice of how a covered entity may use and disclose protected health information about the individual, as well as his or her rights and the covered entity’s obligations with respect to that information. Most covered entities must develop and provide individuals with this notice of their privacy practices.‘
McKenzie Friends are established to defend and advise those who are of limited means and who are in dire need of legal assistance, such circumstances mean that regardless of what is written in the ‘notice’, people will submit to that and risk being exploited i.e. ‘Your information will be shared with others unless you fill in a form and send it to a certain address within a specific time-frame, to request your details remain confidential’: The pitfalls of ‘notice’ could attract unscrupulous entities who might take advantage of McKenzie Friends role in order to profit surreptitiously from very vulnerable people.
Code of Conduct: Should there be a universal Code of Conduct for McKenzie Friends?
In short, yes; a Code of Conduct is necessary in terms of providing basic assurance to both courts and LiPs that McKenzie Friends can be trusted to act in respect of established protocols and lawful conduct. Again, because McKenzie Friends are not a ‘covered entity’, codes of conduct cannot reasonably be any more than is required generally, from any lawful member of the public:
- Competence to act autonomously.
- Commitment to justice, honesty and truth.
- Respect for others rights, the law and higher authorities.
- Adherence to appropriate language.
- Appropriate personal appearance and conduct.
Legal Language: Should McKenzie Friends be committed to using ‘plain language’?
McKenzie Friends welcome use of plain language which we feel needs to be applied in all areas of law. However, care needs to be taken in order to ensure that ‘plain language’ does not negate or confuse fundamental discrepancies whereby, an historically accepted ‘plain’ word is loaded with ulterior or hidden, meaning that is not linguistically correct or lawfully applicable except, in terms of covertly limiting and/or denying people’s lawful rights.
Examples of such incorrect wording as described above, are reflected in the current use of the terms ‘ignorant’ and ‘minor’:
The word ignorant is related to the root word ‘ignore’ which essentially, means to know and then, take no notice of. Somehow, the verb ‘ignore’ is extended to the adjective ‘ignorant’ as meaning simply ‘not knowing’/mystified as well as, to be actively ignor-ant or else, acting in ‘ignor-ance’, which then presents us with a dual interpretation of the word ‘ignorant’ as being both an action and a state of being.
Since ‘ignorance’ is no grounds for defence in law, we can see how historically, the misinterpretation of that word has led to sweeping judgments issued against native peoples of other lands who are subsequently, mercilessly exploited due to their being judged ignorant/’heathen’ under God’s Law simply, because they knew nothing of literacy, math’s, Jesus or the bible etc. As ‘heathen’ such peoples were afforded little or no, legal recognition as God’s people with rights under God’s Law.
Because we already have established the word ‘mystified’ as meaning ‘not-knowing’, lawfully and in interest of plain language, the term ‘ignorant’ cannot apply to those who are for whatever reason, mystified in terms of knowledge about rules, procedures etc. One can argue that the present definition of the word ‘ignorant’ is antiquated, linguistically, incorrect and therefore, unlawful in its present application to law and human rights.
We witness the same discrepancy in the legal application of the word ‘minor’ in relation to children. The root definition of the word ‘minor’ is ‘lesser’/’unimportant’; this is an example of a ‘loaded’ word because it covertly imposes the notion that children are lesser human beings and are unimportant. The reality, is that children are developing human beings and therefore, are exceptionally important as the future of our species depends entirely, on our children’s capacity to grow up into fully functioning, competent, creative and law-abiding adults.
Today, we are experiencing the centuries-old impact of the term ‘minor’ on children who remain a largely, marginalised and trivialised concern; crimes against children continue to be negated, ignored and/or covered-up; governments create policies such as ‘austerity’ without taking too much notice of the ‘minor’ concern as to how a policy of ‘austerity’ or ‘zero-hour-contracts’ will reflect on the nation’s children.
McKenzie Friends act not only on behalf of individual members of the public but also, on behalf of the general public. Because McKenzie Friends act according to a clear understanding of law as ‘lay’ legal advisors, they are not duty-bound by regular legal protocols as applicable to professionals: McKenzie Friends do not fundamentally perceive the general public or our LiPs, as ‘ignorant’ and neither, do we consider children to be ‘minors’ and yet, both those words are considered as ‘plain’ English.
In light of all of the above, ‘plain’ English is not necessarily, lawfully accurate English according to the true extent of our knowledge in relation to the true meaning of words being legally applied. Until British courts and legal professionals are prepared to address present and very serious discrepancies as reflected in the legal definitions of ‘ignorant’ and ‘minor’, the use of ‘plain’ English needs to be employed with caution.
Prohibition on Fee Recovery: Should McKenzie Friends be prohibited from receiving any form of payment at all for their work even, in relation to expenses incurred?
“The JEB’s intention is to protect the public interest and vulnerable litigants from unregulated and uninsured individuals seeking to carry out reserved legal activities. This approach is also in line with Parliament’s intention that rights of audience (the ability to appear and present a case in court) and to conduct litigation should be strictly regulated.”
McKenzie Friends do not charge for their services though often, those services do involve expense, such as travel etc. It is not unreasonable for LiPs to cover transport or meal costs for their McKenzie Friend as it is often the case that McKenzie Friends are themselves, on a very limited budget. It is more often the case that LiPs pay nothing at all toward McKenzie Friend expenses due to their McKenzie Friend being supported by independent others as a charitable / vocational concern.
In today’s present economic climate and with drastic cuts in provision of Legal Aid and CAB, the public need for McKenzie Friends has dramatically increased and with a majority, being left without means even to cover expenses; the reality is that most McKenzie Friends incur expenses which are paid from their own pocket.
McKenzie Friends act on strength of a vocation to ensure justice instead of, as a socially recognised, professional status and means of income, the idea of ‘prohibiting’ McKenzie Friends from receiving any possible funds or other forms of payment, is effectively, to negate their presence in courts and/or ability to represent and/or advise, their LiPs.
People are lawfully entitled and have a right to, offer a gift to those who freely offer their services of knowledge, wisdom and experience: Any legal limits on provision to McKenzie Friends is therefore, an infringement of peoples lawful right to give and receive outside of the regular economic systems of buying and selling, services and goods. While there are legal limits on how much money may be given prior to taxation, these rest mostly, with the giver.
LiPs relying on McKenzie Friends are most often, people with limited means, the risk that a McKenzie Friend might financially exploit or profit from their work, is vastly diminished to the point that it is really, ‘picking at straws’ to address any such risks by way of a legal prohibition: Will McKenzie Friends will be left facing criminal charges on receipt of payments toward expenses etc.?
Because the status McKenzie Friend is not a paid profession and instead, an individual vocation to expertly assist others with emphasis on the term ‘FRIEND‘, effectively, the proposed ‘prohibition’ would be to criminalise agreements on provision of friendly support between lawful citizens: This could be perceived as a covert threat against the rights of people generally, to assist one another in times of need.
McKenzie Friends are presently filling a gap in providing vital, legal assistance to an increasingly, impoverished public: With no income provided from any officially recognised sources, it is a matter of privacy, personal discretion, free choice and free will between public and McKenzie Friends, as to what income may or may not be provided in relation to their work and expenses incurred.
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