Second class litigants

Family Law|May 26th 2015

From 1949 until 2013, including the entire time I was practising, we essentially had a system of equal family justice in this country. No matter how poor you were, the state would ensure that you had access to proper legal advice and representation. All that was swept away on 1 April 2013, when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) abolished legal aid for most private law family matters.

How were those who could no longer access a lawyer to manage? Well, the government pretty much left them to their own devices. They were told to go to mediation, but that is of no use if, as is often the case, the other party is not prepared to cooperate. In any event, mediation, as we have seen, is often unsuccessful, and obviously mediators cannot provide the parties with advice. The options for the less well off litigant to obtain advice are extremely limited: free advice, which is usually of a very basic general nature and does not normally extend to assistance in court, or perhaps the use of a McKenzie friend or other ‘pseudo lawyer’. The problem with McKenzie friends and others is that they are not regulated, and the litigant does not know what they are getting.

I’m not practising, so I don’t see the effects of LASPO first hand, but a judgment handed down by the President last week provides an insight into just what litigants who can’t afford representation may be faced with. Re Baggaley concerned a man who put himself forward as a McKenzie friend and acted on behalf of a mother in private law proceedings in the Leicester County Court, in particular an appeal by the mother against an order of the District Judge.

What were Mr Baggaley’s qualifications to act for the mother? Well, his previous employment was as a bouncer in public houses and clubs. He admits to having used quite a few aliases, which he changes every now and then. He has a criminal record, including serving a number of prison sentences for offences of both dishonesty and public disorder, and he has no relevant professional training or qualifications. The judgment does not say whether he had any insurance, but I will leave you to draw your own conclusion on that point.

The case revolved around two civil restraint orders made against Mr Baggaley, and his attempts to have them set aside. The first civil restraint order was imposed to prevent him from issuing any further court applications, after he had made a number of applications that were totally without merit. The second order was made to prevent him from acting as a McKenzie friend in any family proceedings, after he had aggressively faced up to the father’s counsel in the courtroom corridor and had generally behaved in an inappropriate fashion for a McKenzie friend.

Considering the applications to set aside the civil restraint orders, the President did set aside the first order, but extended the second one indefinitely.

The case may even be slightly amusing to some, but it has a real victim: the mother who instructed him. As Judge Bellamy, who made the second civil restraint order said: “Mr Baggaley has served this mother very badly … she has in truth been nothing more than a puppet in his hand. Mr Baggaley is not an asset to a litigant in person. He is a serious hindrance.” The mother’s appeal was withdrawn.

Now, I’m not saying that Re Baggaley is typical of what now faces litigants who cannot afford lawyers – as I have said here previously, there are some very good McKenzie friends out there – but it does give an indication of how they can fall victim to incompetents and charlatans. The government has created second class litigants who have to face these risks, and the really worrying thing is that it doesn’t seem to care.

Photo by Alwyn Ladell via Flickr

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  1. Wistilia says:

    Nigel Baggaley aka Nigel Quinlan as he also calls himself, is a liability to anybody’s case, no doubt about it.

    However, there are some Solicitors and Barristers who fall into the category of being a liability to people’s case also.

    For example only this week we have a Barrister being slapped with 11 Misconduct Findings.

    Nigel Baggaley aka Nigel Quinlan has been dealt with by the courts now and his clients protected, Without Regulation.

    The Barrister with 11 Misconduct Findings has also been dealt with by the Ombudsman,

    I suggest that Nigel Baggaley aka Nigel Quinlan has been dealt with more expeditiously than was the Barrister?

  2. Dr. Nigel Miles says:

    Why oh why do you have an aversion to make disquiet regarding any optimism which even the Family Courts support and that is mediation. Unless there is criminal intent and proven by empirical evidence, then the role of Courts have to be secondary and that is the direction that quiet society is evolving towards irrespective of those in the murk of the legal system who still financially benefits from the misery imposed on close and all family members.

    Courts and mediation companies dealing with irascible immature parents are like Principles/Headteachers or equivalent dealing with naughty pupils; the former are like irresponsible mediatees crying crocodile tears to hide their irrelevant immaturity whilst the latter know they have done wrong holding their heads low. I know having been in the teaching service for over 25 years and relating wonderfully with our children in our society. This written, the fact being is that mediation if it were part of a morally lead enaction would work. There are ways of making it work. Are we without the wit not to succeed in this.

    Now it comes down to the responsible factor. Giving parents both the moral and legal rights of parenting, irrespective of whether the relationships is maintained. Once a parent always a parent.
    Yes what I have declared relates to Private Law; there is no question to this and Public Law is another sadder issue where society becomes the parents and their best interests again must be audit to a greater level than it is at this time. So we have a legal relationship called marriage which is still the main thrust of permanent relationships; most times we expect children to be born which is the case. So two parents

  3. Dr. Nigel MIles says:

    I apologise for the abrupt ending of the above blog, as my cat jumped on my lap and caused an abrupt ending…

    So continuing: …..are responsible for the children, h’mm parental responsibility but sadly with 40% of such marriages detaching and the children remaining where we have the” presumption” that the parents will act as parents, when this happens this is wonderful in one respect. But when parents or one parent acts like a spoilt child, and insults society by breaching this responsibility by debasing the other parent and abusing the child, we have to be clear that this would NOT happen when there was parity of responsible parenting.

    It comes back to the same point like a circle and the evidence is inescapable, (as per Mr. Spock)…that the only mechanism for allowing children’s best interest to be ensured is by the legal entitlement of parity of responsible parenting.

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