The Father v The Mother & Ors

These proceedings concern three children, A (aged 14) and twins C and T (aged 10) (“the twins”). The Applicant is the Father (“F”) and the First Respondent is the Mother (“M”). The children are the Second to Fourth Respondents, represented by the Children’s Guardian.

The F represented himself, and was accompanied by a Mckenzie Friend. The M was represented by Joshua Brindle and the Children’s Guardian was represented by Rebecca Franklin.

There are a number of applications before the court.

The F applies:

The M applies for an extension of the s.91(14) order up to the children’s 18th birthdays and for a costs order against the F.

There is a lengthy history to this matter. The parents’ relationship began in 2002. A was born in April 2011 and the twins were born in February 2015. The parents separated in June 2018, reconciled for a period and then finally separated in June 2019.

The F made an application for a CAO on 28 June 2019. The case was then beset by lengthy delays, in part because of the Covid pandemic. The allocated judge was DJ Bailey (now HHJ Bailey).

Throughout the period from the separation until May 2023 the F was having contact with the children, whilst they lived with the M.

In September 2021 DJ Bailey heard a three day fact finding hearing and produced a detailed judgment. The F does not now dispute the findings of primary fact in that judgment but argues that he did not have a fair hearing, and that the analysis of his behaviour was slanted against him because DJ Bailey did not know that he had ASD and did not consider the matter in that light.

There are a number of passages from that judgment which are in my view relevant to the issues that I have to decide:

“65.

He was, I am afraid, an unimpressive witness whose evidence was not credible. He was defensive, combative, evasive, at times sarcastic, or asked questions himself. He was at times very domineering when he gave his evidence, frequently speaking over or interrupting others. He was at times patronising. He was articulate for the most part, but his evidence was somewhat inconsistent, and I am satisfied he was not always truthful with the court in his evidence.

…

126.

What [the F’s] evidence to the court demonstrated is a complete lack of understanding of the perspective of the children, what changes he could make to mitigate the current situation and what he could learn from the past to improve the future. The focus is about the failings of others, but he does not feel that he has done anything wrong or made any mistakes in his handling of this situation. The evidence points to a woe is me attitude, seeking to paint himself as the victim and indeed that was his remarkable evidence to this court, that he, not [Person B1], is the victim, that she has set traps for him. I do not accept that is the position at all.

…

133.

With all of the complaints that father has made, and the professionals who have not done as he wanted, the father has complained in most part, in my judgment, to deflect attention, to seek to divert professionals from looking at and assessing what is right in front of them. It is, in my judgment, a significant and concerning part of this father's personality, is demonstrative of how he seeks to control and distort information, the agenda and the narrative.

134.

I note the following. [A] is very vocal at lunchtimes, telling the rest of her table, "Daddy shouts all the time at mummy". She was noted to be very sensitive and could be tearful at times. One of the children told staff, "My dad says the f word all the time. You know the naughty word that starts with f." She has also told staff that dad shouts at mum all the time. One of the girls talked about [the F] getting mad and kicking things like a table.

135.

One child, now known to be [one of the twins], had been crying in school, claiming that [the F] had told her he would kill the cat if the family did not return to live with him. She reports having nightmares about who she is going to live with and what is going to happen to her. She said, "Dad has told me someone is coming to see me, not my sisters. They are too young. They are going to interview me and ask if dad is nice or if he shouts. He says I've got to say that he doesn't shout, and he does nice things and he's not an ogre. They are coming to see who is safe for us to live with." This is, in my assessment, a direct example of [the F] seeking to manipulate [Person C1] into saying what he wants her to say, to achieve what he wants to achieve.

136.

The emotional impact upon the children is clear. At D5 the school, on 14 February 2020, noted that [a twin] had been working at an age appropriate level. However, over the last few months her reading and writing skills were now well below age related expectations, with her maths test data also below age related expectations. [a twin] had referred to herself as ‘a loser' in school. The school were voicing clear concern that of the three children [a twin] had been most affected, with school sharing concerns in relation to [a twin] mental health if the conflict continued. She was noted to be teary in school and was describing herself as tired or scared when asked by school staff how she was feeling. [Other twin] was noted to be rude at times in school.”

Following that judgment an order was put in place for direct supervised contact between the F and the children. It is therefore apparent that that fact finding judgment did not lead to any conclusion that the F posed a risk to the children that would prevent contact. The Guardian did not at the time oppose supervised contact and, as I read the papers, the hope was that contact would build up, as is common, to unsupervised contact. The F’s case is that contact was entirely positive and that the contact supervisors, YMCA, would confirm that.

However, in May 2023 there was an incident when A heard the F saying something derogatory about the M. The consequence was that A said she no longer wanted to attend contact and the twins followed suit. Direct contact ceased from that point.

The matter came back before DJ Bailey on 3 October 2023. Unfortunately it has not been possible to obtain a transcript of her judgment from that date. However, she made a final order that the children lived with the M and only had indirect contact with the F (monthly letters, cards and gifts). This accorded with the children’s wishes and feelings as expressed to the Guardian at the time.

DJ Bailey made a s.91(14) order that expired on 3 April 2025.

On 6 January 2025 the F applied to reopen the proceedings on the basis that he had been diagnosed with ASD and that constituted a material change of circumstances that would justify reopening the case. HHJ Bailey refused the application on the papers.

The F then made a further application on a C2 asking that HHJ Bailey recuse herself on the basis of being biased against him and her not understanding ASD and the impacts of his diagnosis. This came before the Judge on 10 June 2025. In his written application to the court the F referred to a number of previous authorities, in particular relating to ASD. HHJ Bailey realised that many of these cases were not genuine, and the submission appeared to have been generated by Artificial Intelligence (“AI”). In light of the level of recent concern about litigants and lawyers using AI and referring to cases which are not genuine (as reflected in the Divisional Court decision R (Ayinde) v London Borough of Haringey [2025] EWHC 1383), HHJ Bailey referred the case to me as the Family Presiding Judge for the Midlands.

The matter came before me on 18 June 2025. I did not consider there was any ground for HHJ Bailey to recuse herself, however I decided to list the matter for a further hearing before me on 8 July 2025 to determine the F’s applications.

In respect of the F’s allegations against the Guardian, Mr Smith, I requested that Cafcass appoint a second officer to joint work the case with Mr Smith. I make entirely clear I took this step not because I had seen any reason to doubt Mr Smith’s professionalism, but because I wanted to take any proportionate steps to ensure that the hearing on 8 July 2025 could proceed in as calm a manner as possible. Whether by reason of his ASD or otherwise, the F quickly becomes highly dysregulated in court and the hearings become very difficult to manage, and I am sure upsetting for all concerned, including the M. It therefore seemed sensible to have a situation by which Mr Smith was not in court, but Cafcass, and in particular the children’s interests could be fully represented.

The law in relation to re-opening findings of fact is found in two Court of Appeal decisions, Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316. Those authorities endorse the decisions of Hale J (as she then was) in Re B (Minors) (Care Proceedings: Evidence) [1997] 2 All ER 29 and Munby P (as he then was) in Re Z (Children) (Care Proceedings: Review of Findings)[2014] EWFC 9.

The ‘test’ to be applied was recently summarised by Peter Jackson LJ in J (Children: Reopening Findings of Fact) [2023] EWCA Civ 465:

“6.

In summary, the test to be applied upon an application to reopen a previous finding of fact has three stages. Firstly, the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.

7.

In relation to the first stage: (i) the court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly-based welfare decisions on the other; (ii) it should weigh up all relevant matters, including the need to put scarce resources to good use, the effect of delay on the child, the importance of establishing the truth, the nature and significance of the findings themselves and the quality and relevance of the further evidence; and (iii) above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.”

Procedurally this case is somewhat complicated because the F made his application to re-open when the s.91(14) was in place, and therefore he needs permission to bring the application. He submits that the fact of his diagnosis means that the Court should reconsider the case, and that justifies the grant of permission.

In my view the correct approach is to apply the tests in Re J as to whether there is any reasonable prospect of a court reaching a different decision. That determination will then dictate whether permission to bring proceedings should be granted. I will then go on to consider the M’s application to make a further s.91(14) order.

I allowed the F to be accompanied by a Mckenzie Friend, his partner. In the light of his concerns about my conduct of the June hearing, at the final hearing I simply allowed the F to speak for 45 minutes. He took two breaks during the course of the hearing when he became so dysregulated that he had to leave the court room. I then allowed Mr Brindle and Ms Franklin to make submissions and sought to persuade the F not to interrupt those submissions.

The F submitted a personal statement in support of his applications. He also wrote to the court after the hearing on 26 June raising concerns about the court’s approach to his ASD. After the hearing on 8 July the F again wrote suggesting that I did not understand the impact of his ASD.

The F emphasised at many points, both orally and in writing, how much he loves his children and how much they mean to him. I have no reason to doubt that this is true. However, in his oral submissions the F became very fixated on Mr Smith’s alleged “dishonesty” and hostility to him, and on the M having deliberately and maliciously alienated the children, and manipulated the F. As with DJ Bailey’s comments in her judgment, the F was quick to blame others. Although the F did refer to the children in oral submissions, his main focus in the hearing was on the M and Mr Smith.

The F’s case turns on three points. Firstly, his diagnosis of ASD on 21 November 2024. This was done by a clinical psychiatrist in one session in a remote meeting. The diagnosis refers to Level 1 autism. The F became extremely angry in court when Mr Brindle described Level 1 as the “mildest form of autism”, but I note that is how it is described on a number of ASD websites. The phrase used is that this level of autism “requires support”. The assessment makes clear that the F has communication difficulties and can struggle with social interaction. I fully accept the diagnosis, however, there is very little, if any reference, in the assessment to the F’s relationship with the M and the children. I accept that was not the purpose of the assessment, which is merely to provide the diagnosis. However, the assessment is of somewhat limited assistance to the central issue in the case which is whether it is in the children’s best interest to have further contact with the F and the relevance of the diagnosis to that issue.

The F relies heavily on the Family Justice Council Guidance on Neurodiversity in 2025 and the role of professionals in understanding ASD and supporting ASD parents. He claims that Mr Smith failed to do this and that DJ Bailey did not appreciate these issues when conducting the hearing.

The F submits that his ASD traits, including emotional overload and communication challenges, were misconstrued as controlling or aggressive. He says that the M used his ASD to allow a “false narrative” to take hold in court. Therefore if the matter was revisited, and his behaviours properly understood, the court might reach a wholly different conclusion.

The F also submits that he did not have a fair hearing in 2021, and presumably 2023, because no special measures were put in place which would have assisted with the impact of his ASD. He submits that PD3A and 3AA and the requirements to put in place special measures were not adhered to.

Secondly, the F submits that the Guardian is biased against him, has acted unprofessionally and has lied to the Court. I think his suggestion was that the Guardian had supported the M in her alienating behaviour. The F refers to the evidence that contact with the children had gone well, and suggests that the Guardian misrepresented the position to the Court.

Thirdly, the F submits that the M has alienated the children from him, and that she deliberately manipulated him into saying things that she subsequently used against him. He referred to various incidents in the fact finding judgment that he suggests would be considered differently if it had been understood that he had ASD.

Mr Brindle, on behalf of the M, points out that DJ Bailey reached her conclusions after listening to over three hours of audio recordings between the parents. Therefore DJ Bailey’s conclusions were based on primary and incontrovertible evidence. He relies on the multiple examples in the evidence of the F being highly aggressive and abusive to the M, whether that behaviour was exhibited by someone with ASD or not.

Importantly, Mr Brindle submits that the fact finding judgment did not dictate the outcome in respect of contact. This was a case where the children were spending time with the F throughout the proceedings. That contact broke down, as is clear from the Guardian’s final analysis dated 3 August 2023, not because of any findings in the judgment, but rather because of the F’s emotional state and his comments about the M which were overheard by A.

In respect to whether the ASD diagnosis has any realistic prospect of changing the court’s determination, Mr Brindle points to the concerns of the Guardian in August 2023 about the impact of the proceedings on the children. That is entirely supported by the Guardian’s meeting with the children in June 2025, referred to below.

Mr Brindle submits that there is no realistic prospect of the court changing its conclusions in the light of the history of this matter and the children’s clearly expressed wishes and feelings.

In respect of the M’s application, Mr Brindle submits that there is a clear risk of future harm to the children if proceedings continue, and therefore the filter of a s.91(14) order is needed.

Ms Franklin, on behalf of the Guardian, largely supported Mr Brindle’s submission. Mr Smith had been to see the children on 27 June 2025. The note of his visit is as follows:

“On arrival, this was a task of reintroducing to all the girls, who welcomed me, especially as I have met the girls on multiple occasions during the previous Proceedings.

[Twin 1] was struggling to engage and appeared somewhat anxious, which her mother says has been happening more and more lately and she is speaking with the school about [Twin 1’s] apparent anxiety. [Twin 1] says she does not wish to discuss the situation again, which is of little surprise given her clear views previously.

[Twin 2] is engaging and wanting to show me her rabbit and chat about school and friends.

On A walking towards me she appeared somewhat emotional. On sitting down with [Twin 2] and A (as they wished to sit together to speak with me) A started to cry. I discussed the situation and also took time to talk about this being an opportunity to change their views and see their father if they wished too [sic]. The girls were quick to respond saying they have previously said what they wished to happen. Again, I reinforced the comment that this could still be an opportunity to change their views and see their father.

A was asking why her father, who she referred to as “he” throughout, is doing this again. [Twin 2] echoed similar comments as to why their father will not listen and leave them alone. A said the following: “we just want it to stop Steve. We’ve said what we want to happen and we don’t want to see him. Why won’t he leave us alone and just stop it”.

Further in the conversation, I was explaining the process and I would make the Judge aware of their views. A then said, with [Twin 2] acknowledging and nodding her head to: “Can you ask the Judge to please make it stop”. I made the girls aware and would share their comments with the Judge.”

Ms Franklin points out that the F was represented throughout the fact finding hearing, save for judgment. At no point were special measures requested or any suggestion made as to the fairness of the hearing. The tests in PD3A and PD3AA, and in particular para 3A.7, do not come close to being met here.

Further the F had a psychological assessment during those proceedings by Professor Wilcox, who did not suggest that the F had ASD and who did not recommend any special measures were required, or that any form of neurodiversity lay behind the F’s behaviour.

The F undoubtedly struggles to engage in the court proceedings and quickly becomes highly dysregulated when anyone says anything he does not agree with. He says this is a consequence of his ASD. The F was adamant that he did not get “angry”, but his conduct in court, certainly at times, manifested itself in a way that gave the appearance of anger and an inability to control himself. Ultimately, whether this is a product of neurodiversity or not, makes little different to the impact on third parties – whether the M in court or the children if there were to be direct contact. His conduct can only be described as intimidatory, both in court and in his written communications.

The F is very quick to say that others do not understand his condition, applying for DJ Bailey to recuse herself on this basis and writing me a letter before this hearing again alleging that I did not understand the condition. The F has made the same allegation against the Guardian but in very considerably stronger terms. In my judgement the F says that others do not understand ASD when that other person does not agree with his viewpoint. All the professionals in this case are very familiar with dealing with parties, including parents, who are neurodiverse.

The first issue is whether I should set aside the 2021 fact finding judgment. The test, as set out above, is whether there are grounds to believe that a different decision would be reached if that judgment were set aside and a new process undertaken. The “different decision” here must be whether a different decision about contact might be reached, because that is the substantive matter in dispute.

The F’s ground for the application is his ASD diagnosis. In respect of the F’s diagnosis, for the purposes of these applications I will take that diagnosis at face value, although I do note that it was not given by a jointly appointed expert. However, in my view, the diagnosis does not have the impact on the case that the F asserts.

One of the points the F overlooks is that the fact finding judgment did not lead to the cessation of direct contact. This is not a case where the facts found were so serious and impacted so directly on the children’s welfare that it led to contact being stopped. Rather, contact stopped some considerable time later because of the F’s behaviour and the children’s wishes.

In my view, the most important parts of the judgment are not the “facts” which were found, but rather DJ Bailey’s assessment of the F’s conduct. The passages that I have set out above accord precisely with my observations of the F over the two hearings when I have seen him in court.

The F appears to have no insight into the impact of his behaviour and no ability to control himself. He sees himself entirely as the victim of every situation. The diagnosis of ASD merely seems to have reinforced his narrative of everyone else – Mr Smith, the M and now myself and HHJ Bailey – as being the authors of his misfortune.

I have seen no evidence that Mr Smith has acted in anything other than a professional and appropriate manner. There is nothing in his reports that suggests any bias against the F. Similarly, I have seen nothing to suggest that HHJ Bailey has not conducted the proceedings entirely fairly, and that once the F produced the diagnosis of ASD, all appropriate steps have been taken by the court.

I am particularly concerned about the F’s level of dysregulation and apparent inability to control himself. His conduct in court was intimidating. Although he said he was not “angry”, he certainly appeared as such to any neutral observer. He said that he did not get angry in front of the children, but the evidence as recorded in the fact finding judgment from the children (not from the F) does not support that proposition. The various records of what the children have said indicate very strongly that they have witnessed angry and out of control behaviour, even if it was not aimed at them.

The F’s lack of insight, or empathy for the children, is perhaps best illustrated by him applying for the children to live with him, even though they have not seen him for a considerable time and have made clear that they don’t want to see him. The F appears to be incapable of seeing the situation from their viewpoint. This may be a function of his ASD, but in a decision that must focus under s.1 Children Act 1989 on the best interests of the children, the cause of his lack of empathy and insight is ultimately beside the point.

The most important reason why re-opening the fact finding judgment is most unlikely to lead to a different outcome, is the views of the children themselves. They have said without equivocation that they do not want to see the F and that they wish the proceedings to stop.

A is now 14 years old. It would be exceptionally unlikely that the Court would try to force a child of that age to see a parent that they did not wish to see. The twins are younger, but they strongly align with the views of A. The F suggests that these views are the product of the M alienating the children, but there is no evidence to support that analysis. It does not accord with the 2021 judgment, or with any of Mr Smith’s reports. Importantly, the M did not seek to prevent the F having contact after the 2021 judgment, or act contrary to any court orders; the barrier to contact was the F’s own conduct. Therefore the M’s own conduct points strongly against any finding of alienation.

The children are now adamant that they do not want to see the F and that they want the proceedings to stop. In my view it would be wholly contrary to the best interests of the children if I were to allow proceedings to be re-opened, or to allow the F to make further reapplications.

In my view there is no realistic prospect of any court coming to a different decision on contact to that of HHJ Bailey in 2023. Therefore I decline to allow those proceedings to be re-opened.

In the light of the children’s consistent and very clearly expressed views that they do not wish to see the F and want the proceedings to end, it is appropriate that I make a s.91(14) up to their 18th birthdays. These children, and the M, have been in lengthy proceedings, save when a s.91(14) order is in place, for their best interests that needs to stop.

The M makes an application for her costs in the sum of £5,900.63. Costs orders do not follow the event in Family Court proceedings in the way they do in Civil cases. However, in my view the F’s litigation conduct has been such that a costs order is justified here.

DJ Bailey found that the F had used the litigation as a method of coercive control over the M, see judgment para 72-78, including findings that the F made malicious referrals to the police about the M.

In my view that conduct has continued in the present round of litigation, in making further allegations against the M when he said that he did not dispute the underlying findings of fact. Although the F may think that he is pursuing the children’s interests, he has been unstinting in making unfounded allegations against the Judge, the Guardian and the M, including really serious allegations against the Guardian.

The F relied upon faked cases without apparently making any effort to check their veracity. It is in my view important to note that the F is someone who is well capable of checking references and ensuring documents are accurate if it is in his interests to do so.

In the light of this litigation conduct I consider it appropriate to make an order that the F pays the M’s costs in the sum of £5,900.63.