An appeal against a child arrangements order has been granted after it emerged that a barrister who represented the mother in proceedings had also been approached in a professional capacity by the father.

The Honourable Mr Justice Hayden said the appeal, brought by the father, must be allowed as the ‘integrity of the court process must be inviolable’.

The appeal in F v M centres on an order made in respect of a nine-year-old child, named as Z in the judgment, which provided that the child should live with the mother. The mother sought and obtained leave to relocate with Z to Hungary.

The judgment acknowledged ‘lamentable delays which I regret to say are redundant of any satisfactory or, indeed, coherent explanation’ and a ‘conspicuous lack of judicial continuity’ which is a ‘necessity’ in family cases. The delays were ‘on a scale that is unacceptable and entirely inimical to the welfare of the subject child’.

The judge added that ‘great’ as the challenges faced by the family justice system are, ‘they cannot be permitted to eclipse the central principle of the Children Act 1989 which obligates the avoidance of delay, recognising this is intrinsic to fair and balanced welfare outcomes for children’.

The father appealed the relocation on the grounds that the outcome was ‘unjust due to serious procedural irregularity’, including that counsel acting for the mother had previously engaged in discussions with the father.

The judgment said the father met the direct access barrister, referred to as Ms O in the judgment, at a charity social event, and called her the following week to discuss his case and ask her to represent him at a directions hearing. She told him to send her the court bundle. He did so, but received no response.

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Months later, the father, who was an unrepresented litigant at the time, attended court to find Ms O representing the mother and was ‘sufficiently disturbed by Ms O’s presence on the other side of the case to raise it with the judge’.

‘His instinct was that this was both inappropriate and, at least potentially, unfair,’ the judgment said.

At a hearing later that year, the father ‘assumed that his misgivings were not shared by the court and did not raise the matter again’. As a result, the judge was not aware of the background.

Ms O said she did not open or read the bundle sent to her or the father’s email. The judgment noted ‘that in her own account, she talks of sending “a client care letter for the hearing” which certainly can be read as indicating that she is regarding herself as having been instructed’.

Allowing the appeal, the judge said: ‘The weight of the professional obligation is to avoid the appearance or risk of unfairness and, in the time-honoured phrase, for justice not only to be done but to be seen to be done.

‘What is clear is that F approached Ms O in a professional capacity and, at her request, sent him the case papers.

‘F plainly considered that a professional relationship had been created. F’s immediate complaint to the judge, when he discovered that Ms O was representing his partner, is a clear indication of his perception of the professional nature of their relationship. Whilst it may not have generated any factual matrix of unfairness, it creates the appearance and/or risk of unfairness.

‘F certainly perceived unfairness, which is an important forensic barometer. It is also manifestly authentic. In this sphere, the bar is set high and for good reason. The integrity of the court process must be inviolable.’

The case was referred to the High Court to be reheard 'expeditiously'.