This is a post from Tatiana Tkacukova, lecturer in English Language at Birmingham City University.
There are many concerns expressed about the quality of advice now available to parties in family court cases, as so few have lawyers. This blog post discusses the results of a research project on this topic led by Dr Tatiana Tkacukova, School of English, Birmingham City University. The research was funded by the British Academy/Leverhulme Small Grant Scheme.
The project explored over 170 threads from a wide range of online forums and Facebook groups via which parents can post queries related to private and public child law and get responses from McKenzie Friends and comments from other users.
The research was motivated by the fact that cuts in legal aid following the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) left many litigants without an opportunity to receive legal advice for free. Without an affordable option for face-to-face legal advice, many litigants in person (i.e. people who represent themselves in court without a lawyer) turn to online sources and potentially social media groups run by McKenzie Friends, i.e. litigation friends who help litigants in person represent themselves on a voluntary basis or for a fee.
- (1) providing moral support;
- (2) taking notes;
- (3) helping with case papers;
- (4) quietly giving advice on any aspect of the conduct of the case.
However, we know that some McKenzie Friends are providing advice on law, tactics, case management and even seeking rights of audience, i.e. the right to speak on behalf of litigants in person in court (see research study led by Leanne Smith and Emma Hitchings for the Bar Council in 2017).
Within the legal community, there are serious concerns raised about the quality of information and advice provided by McKenzie Friends: they are unregulated, often uninsured, and without proven expertise. They do not have a duty to the court, which is an obligation legal professionals have to ensure public justice is served – without this responsibility, there is potentially a higher risk of unprofessional advisers knowingly distorting the truth or misleading the court. Furthermore, McKenzie Friends may not be aware of the duty of confidentiality or the need to register with the Information Commissioner’s Office. Very little clarity around the fees charged by McKenzie Friends raises additional questions about consumer rights.
Since paid McKenzie Friends mostly operate outside court and provide advice to litigants in person in private, it is more difficult to explore the quality and extent of their advice. The research project discussed here is the first project looking at the actual advice and information provided by McKenzie Friends or online forum moderators in response to parents’ queries. It was important to work with a broad definition of McKenzie Friends as online advisors do not always describe themselves as McKenzie Friends, but do provide support, information and advice. It was also important to explore online forums and social media groups which are most frequently used by parents searching for advice on child related private or public family law queries; the final data set thus included threads from the top most frequently used online forums and Facebook groups.
The analysis of online interactions between parents, McKenzie Friends and other forum/group users was conducted in two stages. The first stage was based on corpus linguistics methods, i.e. semi-automated textual analysis methods which centre around language use. The second stage drew on the socio-legal content analysis and involved categorising McKenzie Friends’ roles and assessing the quality of their advice. Both phases lead to very similar findings, but highlighted slightly different aspects of advice provision online. This post summarises the findings of the first phase; the overview of the other stage will be presented in the subsequent post.
Corpus linguistics stage
The analysis of the most frequent keywords and sequences of words showed, as expected, that litigants in person often do not know where to look for information, what to do or how to proceed in their situations; they also deal with a cluster of problems in addition to legal problems (e.g. mental health problems). The keywords and sequences of words in McKenzie Friends’ responses showed that they provide instructions on following steps (e.g. high frequency of you need to), discuss options parents have (e.g. high frequency of phrases with if or whether) and frequently refer to procedural steps, institutions or legal concepts (e.g. family law, care order, parental responsibility, child protection plan, social worker, domestic violence). A closer qualitative analysis then revealed that McKenzie Friends perform a number of functions: explaining court processes and procedures; explaining the role of courts and social services/CAFCASS; rectifying parents’ expectations as to the role of courts and the meaning of legal concepts (e.g. how courts view child welfare); providing advice on legal strategy; and promoting McKenzie Friends’ services.
Many of these responses are thus helpful for parents looking for advice and information. Posting a question online enables them to obtain a swift response from at least one or even more McKenzie Friends as well as receiving comments from other users. Social media is also one of the marketing strategies used by McKenzie Friends, so networking and promoting their services was common in the threads analysed (e.g. asking parents to get in touch by private messaging, providing information on how to find a local McKenzie Friend). It is worth noting that language used by McKenzie Friends is often informal, which is common practice and a linguistic norm on social media and subsequently helps to build rapport with potential clients.
Despite the useful content in many of the responses, there were also some problematic responses from McKenzie Friends. One of the recurring issues was coaching parents (especially fathers) on what to say to CAFCASS, thus promoting the rights of fathers rather than the best interest of children. Other examples of problematic responses include, for instance, a McKenzie Friend suggesting that engaging with social services is voluntary, without further warning of the consequences of not engaging with them. Occasionally, there were some explicit negative evaluations used in relation to courts, the judiciary, social services/CAFCASS (dumb, broken, ignoring, bad). There were also instances of distrust towards solicitors/barristers implied in some responses in an effort to promote McKenzie Friends’ services. A more frequent problem was a non-conciliatory tone used in responses, e.g. instances in which McKenzie Friends sided with the parent and did not present the full picture as would be expected from a legal professional.
In general, tailored step-by-step advice and explanation provided by McKenzie Friends was useful for litigants in person as this is exactly what they often need but cannot find elsewhere (for free or for a low price). It is however important to be aware of the nature of problematic responses that included explicit expressed or implied negative stance towards the family law system or that failed to frame the advice in more conciliatory terms in an effort to support a parent who could potentially become a client.
You can now read Part II here.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page. You can find our page, and further information here.
Thanks for reading!