The High Court has supported the highly unusual step of prohibiting a barrister from acting in family proceedings because of personal animosity between them and one of the parties.
In Ahmed v Iqbal (Order Preventing Counsel from Acting), the Honourable Mr Justice MacDonald upheld the decision of District Judge Carr to prohibit family law specialist Sima Najma, called in 2013, from accepting further instructions from the father in the Children Act contact proceedings.
Carr had concluded in June that Najma made a ‘highly personalised’ response to the mother’s allegations of misconduct which was inconsistent with an advocate’s objective independence. The judge had said that to resolve a dispute about childcare arrangements then counsel for the parties had a vital role to act as intermediaries, but this may be unachievable if either advocate has become personally embroiled.
Following an appeal, MacDonald said the judge had been entitled to conclude that if Najma cross-examined the mother it would give rise to an ‘apprehension of unfairness’ and a sense that counsel ‘may not only be putting her client’s case but also her own’.
The court heard Najma had previously been a legal executive advising the father on an immigration application and had direct dealings with the mother because she was the only one in the couple who spoke English. When the parties’ relationship broke down and Children Act proceedings began, the mother made the complaints of professional misconduct against Najma to the Chartered Institure of Legal Executives about her alleged conduct during the immigration application. These complaints were ultimately found to have no substance.
In her response, Najma expressed the view that the mother was a ‘very controlling and paranoid person’ who had fabricated allegations. She later stated she would not be ‘beaten down by a bitter ex-wife’. After the mother sent an email direct to Najma’s chambers, the advocate made a complaint of harassment to the police.
Carr noted that the father had confidence in his counsel but ruled there was a risk the mother would feel unfairly affected by the ‘palpable’ antipathy between herself and Najma. The judge said the order sought was an exceptional and rare step but ruled in favour of blocking Najma from representing the father.
Considering the appeal, MacDonald said: ‘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 Najma was asking her questions with an ulterior motive given the very recent dispute between them.’