Two judgments have been circulating this week which reflect very badly on lawyers, or at any rate on two individual lawyers. I’ve been thinking a lot about them. They are uncomfortable reading for any lawyer and for any person who cares about justice. Because justice depends upon competence and ethics of lawyers and these judgments remind us that neither is a given. Though my 20 plus years of experience reassures me that the vast majority of lawyers are both good at what they do and trustworthy, there are exceptions and it’s simply no good to pretend otherwise. I speak from recent, depressing experience.

Sometimes a lawyer is a perfectly good lawyer but just out of their depth in the particular case, or overburdened and overwhelmed through no fault of their own – these lawyers need more support and more experience. That support might be from line managers or from other more experienced colleagues, it might involve formal training, mentoring, support to help manage workloads, to help maintain boundaries or to know their own limits, or just a quiet word with a tip, or some moral support. They may need support from other lawyers in the courtroom when unrealistic expectations are placed upon them, or when they trip up, to remind them of what they did do well and to reassure them that we’ve all been there and made that mistake once.

But sometimes behaviour or quality of work is so bad it needs to be called out. And it needs to be visible to other members of the profession, as a reminder of the importance of both competence and ethics.

And so to these judgments. In the first, M v F [2025] EWFC 114 (B), HHJ Owens was critical of a relatively junior solicitor advocate for his cross examination of a vulnerable witness in private law proceedings. The witness was the mother, who complained of serious domestic abuse including sexual assaults, and the solicitor was acting for the father, who denied her complaints. This is what the judge said about the advocacy:

“I have to note at this point that I was extremely concerned about the quality of advocacy from Mr Mahmood during this fact-finding hearing. Even making allowances for his client potentially presenting him with challenges in terms of presenting a consistent and clear case in response to M’s allegations, as was pointed out by Ms Lucas in closing Mr Mahmood’s cross examination was unclear, confused and at times unnecessarily aggressive in tone. It took far longer than originally allowed, partly because at times his unclear questioning made it difficult for anyone to work out what was being put to M or Ms Jones. At one point, M became very distressed despite my attempts to avoid this by taking regular breaks and clarifying what she was being asked when I was unclear or asking Mr Mahmood to move on if he was repeating the same question numerous times. I ended up rising earlier than planned on the first day, part-way through M’s evidence, to allow Mr Mahmood to ensure that he was using the correct version of the bundle (it having become apparent that he was not using the same version as everyone else), update his page references accordingly, and to refresh his knowledge of the Advocates’ toolkit and the Family Procedure Rules when dealing with vulnerable witnesses in a Family court. He assured me that he was aware of this guidance, and I had hoped that the additional time to prepare before recommencing on 26^th March (I was not sitting on 25^th March) would have avoided further issues with his resumed cross examination. Sadly, this did not prove to be the case and, at one point when his cross examination of M resumed on 26^th March, I had to stop him from raising his voice and aggressively questioning M about the allegations of sexual abuse. It was not at all what one would expect of an advocate when dealing with a case involving serious allegations of domestic abuse, including sexual abuse.”

The judgment includes a number of other references to the approach taken by the solicitor on behalf of his client, which taken together suggest that those questions probably did little to assist the court or the client. It’s hard to know if this poor performance was down to a lack of preparation, a lack of training or experience, or a failure to exercise judgment when deciding how to present the client’s case – we do not have to parrot the line our clients want us to take with a question mark at the end, and nor should we.

The second judgment (not a family case) really needs little explanation – I have seen and heard so many mentions of it online and in discussions with colleagues that I know it has reached most members of the bar already. But for those it has not reached – the case of R (On the Application Of Ayinde) v The London Borough of Haringey [2025] EWHC 1040 (Admin) involves a disastrous scenario where a junior barrister (said in some places to be a second six, but elsewhere to be a couple of years call, so at any rate relatively junior) appears to have submitted pleadings and documents containing fake citations and fake summaries. Although the judge made no finding that the source of the fakery was the use of AI, and the barrister denied this, it is difficult to think of an alternative explanation – and indeed one doesn’t seem to have been given. It is possible the barrister unwittingly borrowed someone else’s AI produced template, but either way there appears to have been a failure to do due diligence and a failure to own the mistake. Many people I have spoken to have asked – where was her support? Who did she have to ask for help and support? A good question in these times when the bar is always working at distance, and rarely spending time in chambers together. I don’t know what the answer was for this barrister. But please, if you are ever in that stomach churning moment where you realise you have made a big error – ask for help. Ask for a brief adjournment and phone a friend in chambers or the ethics line.

Judgments like these make us gasp and squirm. On a personal professional level they are devastating. But they are also important as a reminder of the importance of us all ensuring we are well prepared, competent, exercise good judgment and are honest. If we are not, we risk censure in the form of published judgments, and potentially reports to our regulators (and I speak as someone whose mandatory duty to report professional misconduct was recently triggered – in large part it related to competence and conduct of cross examination. It was not a happy decision to have to reach).

Those who are cross examining vulnerable witnesses (that’s anyone working in family law) must take seriously their obligations to learn how to do it properly. It’s not easy work and none of us gets it right all the time, even with the benefit of the training, but the least we can do is to take up what is on offer to us – for barristers training is available via the FLBA.

I know from direct observation that not all advocates question in compliance with the toolkits and 20 Principles. And it is a sad reality that very junior lawyers are instructed on matters that are beyond their level of experience and training and current competence (there are structural reasons for this). It is very difficult to turn down a brief when you are junior, but you must think hard about whether you yet have the skills to conduct a particular case. Don’t do yourself down or become too risk averse – you have to push yourself to grow and if you are never out of your comfort zone you are doing it wrong – but, if in your heart you know you are out of your depth your first duty to your client, the court and yourself is to say so. If that is difficult speak to someone more senior in chambers for a sanity check and perhaps some support about how to deal with the situation via the clerks.

Sometimes its hard to speak to a member of your own chambers, I know that I and a number of others are always willing to take a phone a friend from junior members of the bar at other sets. People did it for me (sometimes still do) and it’s a really important part of the collegiate nature of the bar that safeguards us all. Reach out if you need to.

And now I am off to be collegiate with my colleagues at the bar over a lovely glass of something cold on the lawn at Cumberland Lodge. Make time to make connections with colleagues at conferences and events like this. Over time these strangers will become an invaluable support to you.

Nope, say the Court of Appeal in a really interesting judgment delivered this week, in which my super colleague Olivia Pike argued and won the appeal. See E (Section 37 Direction, The Children Act 1989), [2025] EWCA Civ 470.

I’m glad this has been cleared up because we all know that every so often a judge makes an order under s37 about a child that isn’t the subject of the proceedings. Not that often, but often enough. The only wonder is that it hasn’t been appealed and clarified before now.

The wording of s37 is undoubtedly tempting for a judge with a legitimate concern about a child she has become aware of that is connected to the family that is before the court, but not actually a part of the case. A provision that appears to apply to ‘any child’ is an alluring solution to this problem.

To my knowledge these orders are made from time to time, and the scenario in the appeal isn’t an outlier – the court is often provided with information about other children in a household, who visit the home, or who are in connected households – whether as part of assessment or threshold evidence or otherwise.

I can think of a handful of times where I have encountered judges using s37 in a similar situation (more typically about an older, half or step-sibling or an unrelated child in the same household. I can think of one instance of a judge making an ICO at the same time as the direction, but in others only a direction for a report was made – on one occasion not so long ago a skeptical judge was persuaded to make such a direction based on arguments made by me on behalf of a very concerned guardian – sorry, judge. You were right, I was wrong!). I know that many lawyers and judges have – until now – thought that was permissible. And one can understand why they would reach for this when information crosses their desk that suggests a child is at risk and that there is no safeguarding in place.

From the judgment there were significant procedural fairness issues in the way the judge went about imposing the orders (neither the children concerned nor their parents were aware or represented, and no urgent return date hearing was listed), but leaving those procedural issues aside, the Guardian’s invitation was a reasonable one, and the judges’ response was a reasonable step in response – what else was he to do? Reasonable on a human level, but importantly wrong in law.

The boiled down explanation of why ‘any child’ doesn’t really mean ‘any child’ is that there has to be not only ‘a child’ but also a ‘question’ that arises ‘with respect to the welfare’ of that child. And that means a question that is up for grabs in the case, not a question that pops into the judge’s mind, incidentally – no matter how justified. The judgment is interesting for its an analysis of the FPR, as an aide to interpretation of the statute (yes, that’s a thing) and for it’s reminder that the Children Act has a range of built in safeguards against unwarranted intrusion by the state into the lives of families, and that it draws clear lines of responsibility between the court and the local authority. s37 is an exception to the general rule that public law orders are only to be made on the instigation of a LA, and s37 had to be interpreted narrowly – a s37 order and ISO without notice to the parents of the child concerned entirely bypassed the intended safeguards and cut across the scheme.

The Guardian was right, says the Court of Appeal, to raise her concerns – and the judge was understandably concerned too. But s37 was not available, and nor was the ISO that was made off the back of that direction.

The Court of Appeal suggested that the judge might have directed disclosure of information from the proceedings to the social work team responsible for the other children, but in any event, a guardian who is concerned that a local authority is missing something in respect of a connected non-subject child can make a referral under s47 Children Act 1989 – and needs no permission or direction from the court to do so, by virtue of FPR 12.73(1)(a)(viii) i.e. ‘to a professional acting in furtherance of the protection of children’. Had the judge made an order to that effect though, it might have prompted some liaison and emphasised the court’s concern.