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