MacDonald: Extremely rare order
The High Court has upheld a highly unusual order prohibiting counsel from continuing to act for the father in a bitter child custody dispute because of acrimony between her and the mother.
Mr Justice MacDonald ruled that District Judge Carr was right to find that the continued participation of Ms N would lead to “a reasonable lay apprehension of unfairness” and thus create “a real risk” that the order made at trial would be set aside on appeal.
The district judge had said that, while lawyers in family cases were often the subject of complaints, they should limit their response to “objective and dispassionate rebuttal”.
But Ms N had gone beyond this, he decided.
The barrister initially acted for the father in November 2016 on his ultimately unsuccessful application for leave to remain in the UK, while working as a chartered legal executive for a law firm.
The father gave her permission to communicate directly with the mother in her capacity as the sponsor for the immigration application in light of the father’s limited English.
In April 2017, the parties divorced. The father sought a child arrangements order in respect of their daughter.
Soon after, the mother made a complaint of professional misconduct to the Chartered Institute of Legal Executives (CILEx) regarding Ms Najma’s alleged conduct during the immigration application.
While initially she was referred to a disciplinary tribunal, CILEx Regulation eventually decided to withdraw the allegations after concluding there was insufficient evidence to prove them.
In March 2019, by which time Ms N had requalified as a barrister, the mother made further allegations against her in an email to her chambers.
In response, Ms N asked the mother to stop harassing and trying to discredit her, and also complained to the police about harassment.
She has claimed that the mother was trying to stop her working for the father as part of efforts to have him deported.
Dealing with the application to stop the barrister acting, DJ Carr observed that, at the substantive hearing, “it will have to be put to the mother in opposing the recommendation in the s7 report for direct contact to commence, that she is not child-focused and her motivation is in question. The court would be in difficulties dealing with these with [Ms Najma] putting the father’s case”.
While acknowledging the father’s argument that the application was in reality a tactical move, the judge said the court’s focus had to be on the fairness of the trial.
He attached “some weight” to the mother’s submission that she would not be able to give her best evidence if cross-examined by Ms N.
DJ Carr continued: “Counsel was clearly upset by the allegations made by the mother. The making of a complaint against a professional in the Family Court setting is part of the experience of all those who appear there, whether they be a judge, advocate or Cafcass officer. The reaction of professionals should be one of an objective and dispassionate rebuttal.
“Here, in my judgment, the reaction went beyond mere rebuttal and became a highly personalised response which would reasonably be regarded as inconsistent with the retention of the requisite objective independence.
“Further, the material before the court also points to counsel standing alongside the client to an unusual degree in attacking the mother’s motives. In the view of the court, the reaction threatens counsel’s ability to discharge counsel’s role in the manner in which it is to be discharged.”
There was, he concluded, a real risk that the acrimony between counsel and the mother threatened to divert the focus from the central issue which is the welfare of the child.
“Counsel has become embroiled to such an extent that counsel’s ability to conduct child-centred proceedings on behalf of the client in an appropriate professional manner is now compromised.”
Ms N, he added, would likely not be able to act with detachment from the underlying hostility between the parties and give impartial advice.
On appeal, MacDonald J rejected various challenges to the ruling, such as that the judge applied the wrong test or gave inadequate weight to the potential for the mother to adopt a tactical position amounting to an abuse of process.
“With respect to the potential for difficulties to arise in cross-examination of the mother by [Ms N] in the particular circumstances of this case, given the evidence before the court the potential for such difficulties was plain…
“There was plainly the potential for the mother to feel she was being cross-examined in the family proceedings by someone who had developed a personal animosity towards her and/or that [Ms N] was asking her questions with an ulterior motive given the very recent dispute between them.”
He pointed to the number of times that Ms N featured as an issue between the parents’ in their respective evidence in the proceedings concerning their daughter.
MacDonald J concluded: “[The judge] was justified, on the evidence before him and having exercised appropriate caution having regard to the rarity of the order sought, in concluding that this was an example of the extremely rare cases in which it is appropriate for the court to direct that counsel should not continue to act for a party to proceedings because their continued participation would lead to a reasonable lay apprehension of unfairness, creating a real risk of counsel’s continued participation resulting in the order made at trial being set aside on appeal.”
Esther Mensah 
Geoffrey Beresford Hartwell 
Excellent judgement