Nursery: Child was moved in breach of court order
A barrister who knowingly allowed a judge and opposing party in a family law case to be misled during a hearing has been disbarred for “professional dishonesty”.
Emma Elizabeth Smith admitted that she had put her client’s interests ahead of her duty to the court.
A Bar disciplinary tribunal said that “dishonesty, particularly in the face of the court, strikes at the heart” of public confidence in the profession.
Ms Smith, who was called in 2005 and practised on the Western Circuit, acted on an application for an order to change the nursery of her client’s child; the child was subject to a specific issues order requiring them to attend a particular nursery until and unless a different order was made.
However, the client had already moved the child in breach of the order.
Ms Smith had advised the client to make a retrospective application to the court to permit the move. “That was obviously the correct advice to give,” the tribunal said.
The application – which Ms Smith did not draft – gave the impression that the child was yet to move and the barrister did not correct this at the hearing.
“It is obvious from that transcript that Miss Smith allowed the father and DJ Murray to be misled about what the true situation was,” the tribunal said.
As the father – who was a litigant in person – was opposed to any move, “it was of particular importance that he should be aware of what the mother had done”.
The hearing was adjourned and two hours later, having considered her conduct, Ms Smith reported herself to the Bar Standards Board.
She told the tribunal that she had allowed her client’s interest to take precedence over her duty to the court, and accepted that her conduct “amounted to professional dishonesty”.
The tribunal went on: “She does not seek to excuse herself nor does she ask for any other sanction than disbarment. We commend her frankness before this tribunal.
“She has now left practice at the Bar and is pursuing another career. She has no wish to return to the bar even though in a powerful reference her former head of chambers indicated that she would be welcome to return if only she wanted to.”
Given the admitted dishonesty, the tribunal said that, in the absence of exceptional circumstances, disbarment was the only sanction, even though there were no serious long-term consequences, because the move to the new nursery was later allowed.
“We do not know why she chose to act in a way that we accept was completely out of character for an otherwise exemplary practitioner and nor, we think, does she, but that cannot amount to an exceptional circumstance.
“There are in truth no other exceptional circumstances that we are invited to find or can find.”
Ms Smith was disbarred and ordered to pay costs of £3,210.
Leave a Comment