AA v BB & Anor

This is my ex tempore judgment on appeal. I should first say that we sit in open court on this appeal but I direct that the parties and their child must not be identified and should remain anonymous in any publication or report from this hearing.

This is an appeal against an order of Recorder Brannan made in the Central Family Court on the 25^th of June 2025. The proceedings concern a very young girl, DD, who was born in June 2024.

The proceedings were brought by her biological father, CC. The respondents in the proceedings are her mother, BB, and the mother’s husband, DD’s stepfather, AA, who is the appellant. I shall refer to them as the father, mother and stepfather for the sake of clarity.

The stepfather is represented by Mr Tyler KC, the mother by Mr Bennett. Both of them appeared before the Recorder. The father was then a litigant in person. At today’s appeal hearing, he is represented on direct access terms by Mr Paxi Cato.

I have received written submissions and I have heard oral submissions on behalf of all three parties.

The proceedings and the circumstances surrounding them have been fraught and a source of anxiety to all involved, in particular, it appears to me, to both the mother and the father, who have responded to that anxiety in different ways.

The mother and stepfather have been married for some nine years. The stepfather is what has been termed a high net worth individual. He works and lives internationally in the USA, in the United Arab Emirates, and in England, amongst other places. The mother has family in Country X. She rents a home and does not own a home in England. The mother and the stepfather may not spend more than 90 nights in any one financial year in England without becoming residents for tax purposes, which I accept would have very serious financial implications for each of them, and therefore for the family in which DD currently lives.

The stepfather has parental responsibility under an agreement for parental responsibility which the Central Family Court has accepted as valid.

The father is accepted to be the biological father of DD but he does not appear on her birth certificate and presently he does not have parental responsibility for her. He has made applications for a declaration of parentage, parental responsibility, and a child arrangements order.

In May 2025 the mother and stepfather applied to relocate permanently with DD to the United States of America.

This appeal, however, is predominantly concerned with interim orders within the father’s application for a child arrangements order. There have been a number of different applications, which appear with position statements and correspondence within the papers provided to the court in the appeal bundle and supplementary bundle, but there is not very much evidence of the circumstances of the parties themselves.

The orders under appeal were interim orders made, as is of necessity, before the court has had full evidence in the case. They were made at a hearing which was essentially a case management hearing and which I am told lasted for one hour.

I have a note of the judgment prepared by counsel and an approved transcript approved by the Recorder, which includes the Recorder’s comments after Mr Tyler KC had sought permission to appeal from him. I say at the outset that the Recorder was in a very difficult situation, having to deal with a sometimes bitterly contested case at a relatively early stage, with several applications to consider in a very limited time. I must not approach his judgment as the court might approach a reserved judgment, which the Judge has had time to prepare and hone.

The background to the proceedings is that the mother and father had a relationship which led to DD’s birth. That relationship developed in England. It was not a particularly long relationship. The mother and stepfather are remaining together, notwithstanding the birth of DD to a father other than the stepfather, and they intend or wish to bring up DD within their family. She is the mother’s first child, and she is the father’s first child.

Until the first interim child arrangements order in the proceedings, which was made on the 2^nd of April 2025 by District Judge Hughan, I am told that the father had spent time with DD on three occasions. That would be during her first nine to 10 months of life.

At the time of the order on the 2^nd of April 2025, the mother had given notification that she intended to spend a month in Country X, but intended to return on the 5^th of May 2025. The Judge recorded that the mother would return the child to England and Wales by midnight on 5^th May 2025. I shall treat that as an undertaking, although later parts of the order throw significant doubt on whether it was a true undertaking. The mother also undertook that throughout that period and until the next hearing, she would take no step permanently to relocate the child outside the jurisdiction.

Thus, that undertaking was effective only until the next hearing and, on my reading of it, did not preclude an application permanently to relocate abroad: that would not be regarded as a step permanently to relocate the child outside the jurisdiction in breach of the undertaking because it would be an application for a court decision. There was, I am sure, no bar on exercising legal rights. It is clear to me, on reading the undertaking that the court had in mind to guard against practical steps towards relocation taken without lawful authority by the mother.

The interim child arrangements order made on the 2^nd of April 2025 was for the child to live with the mother and for the mother to make sure that the child spends time with the father, and that was set out in three stages. From the 5^th of April to the 2^nd of June, twice per week for up to one hour in the community, supported by the mother and any third-party professional agreed by the parties. From the 2^nd of June to the 28^th of July 2025, once per week for two hours, supported either by persons who are identified within the order, and there were a number of options, as it were set out; or in the absence of any agreement as to those options to be supported by a professional supervisor agreed by the parties in advance. Then the third stage was from the 28^th of July onwards, and it stated family time should be for up to two hours, unsupervised and in the community. It was not specified, but would have been understood by the court and the parties that this was for up to two hours once a week.

On the 25^th of June 2025, and so within the second stage of the staged contact ordered in April, Recorder Brannan noted at the hearing before him that contact had not gone well, certainly in the sense that the parties had not been able to fully agree arrangements, and that there had been difficulties and disputes in relation to that contact. I have a chronology which shows that there were six short contact sessions in the first stage, but only four in total in the second.

After the hearing before the Recorder matters seemed to deteriorate, with the police being called on one occasion. The parties had agreed Ms Kenny as a professional supervisor to support contact. She was then not agreed. The mother withdrew her agreement to her as the individual professional. Ms Kenny had previously been put forward by the mother’s solicitors as one of four possible independent social workers to be instructed as a jointly instructed expert, a matter to which I shall return, but she indicated properly in my view that she could not act as an expert once she had professionally supervised or supported contact.

It seems that contact broke down, in effect, by the end of July 2025, although the correspondence shows that the mother’s solicitors repeatedly suggested to the father a professional supervisor or supervising body, Aidhour, and asked for a date to be agreed, at which Aidhour could supervise a contact. But no such agreement to a date or a supervisor was reached or agreed by the father.

The orders made by the Recorder on 25^th of June 2025 which I have to consider in this appeal by the stepfather are first an order that the child arrangements in paragraphs 8 and 9 of the order of District Judge Hughan of the 2^nd of April remain in force. Those are the orders that I have already set out. Secondly, that at paragraph 11 of the Recorder’s order arrangements were made for the instruction of an independent social worker as a single joint expert, which provided for both parties to put forward, if they chose, four names and for a further hearing if necessary in the event of that, the parties could not agree upon an expert. As it is, the parties have not come to agreement as to the identity of the single joint expert.

The appellant stepfather appeals those particular parts of the order of the 25^th of June.

As to the interim child arrangements order, the Recorder was faced with competing proposals, which I shall set out, and it is submitted on behalf of the stepfather, supported by the mother, that it was wrong for the Recorder to continue the previous order as he did, and to decline to make an order as proposed by the mother and stepfather.

As to the directions for the instruction of a single joint expert, it is submitted that they were likely to fail and to necessitate a further hearing, as in fact has transpired. In any event, because no expert has been agreed, further directions are, all parties agree, now needed as anticipated in fact in the Recorder’s order.

The respondent raised cross appeals in his respondent’s notice. He contends in that notice that the Recorder should not have discharged the undertaking in relation to permanent relocation; that he failed to increase contact or to make an order to make up for missed contact; that he ought not to have made a prohibited steps order prohibiting the father from filming the mother and stepfather at contact; that he ought to have determined the declaration of parentage application, or listed it for early determination; and that he was wrong to set down the timetable in respect of statements that he did.

That timetable is within his order at paragraphs 5 to 9 and involves sequential statements from the father addressing his application for a declaration of parentage and a parental responsibility order, and changes to or enforcement of the child arrangements. Then from the mother and stepfather covering their response to the father’s statement and support for their relocation application, and then provision for the father to respond, which would include, of course, a response to the relocation application.

The father also made a without notice application at the end of August 2025 that was heard on short notice on the 5^th of September by His Honour Judge Marin, who adjourned it to be heard by me at or after the appeal, if time allowed, and he reserved costs. The basis of that application was, in effect, that DD had been removed from the jurisdiction without his consent. In response it is said he knew, in fact, that the mother was abroad in Country X. She had been there for some time with DD, and through her solicitor she was agreeing to return to England for contact if arrangements, including the identity of a professional supervisor in support, could be agreed.

Mr Justice Keehan ordered a rolled up hearing of the application for permission to appeal and a substantive appeal of the stepfather, which is before me today.

It is accepted by the mother and stepfather that the father’s cross appeal is in time because of the order of Mr Justice Keehan for a rolled up hearing, save in respect of the appeal against case management orders and that would apply to the timetabling, but if that is out of time, I extend time and I deem that the father’s cross appeals, all of them, have been made within time. No prejudice at all is caused to the other parties by extending time, if needed.

Starting, however, with the stepfather’s appeal which is supported by the mother. The proposal that they made regarding an interim child arrangements order going forward from the hearing before the Recorder, was for contact to take place on three successive days at the end of each month in England, and on two successive days a month in the capital of country Y, which is a two hour drive from the mother’s home base in country X. Each session would be for two hours. This would therefore give DD ten hours a month at a time with her father. He would have to travel to the capital of country Y once a month for two of those two hour sessions but I am told, and this was not contested at the appeal, that he did not object to doing so per se, only to doing so for such short periods of contact, as he saw them to be.

The Recorder preferred to maintain the previous order as the other option, which was for one period of time with the father each week for two hours in England, a total of eight hours’ time between the child and father per month, with the child having to travel to England for such contact, since she spent most of her time with the mother in Country X.

The court’s paramount consideration was DD’s welfare, as the Recorder recognised, although, in fact, he did not have express regard to the welfare checklist.

I have considered the parties submissions with considerable care. Permission to appeal may be given if there is a real prospect of success on appeal or some other compelling reason why the appeal should be heard. An appeal should only be allowed if the decision was wrong or there was a procedural irregularity that rendered the decision unfair. Here, I accept that the Recorder was considering competing proposals in relation to interim child arrangements, which were not inherently unreasonable, and I allow for the exercise of the wide discretion on his part.

I bear in mind the dicta in Piglowska [1999] UKHL 27, and I should not lightly interfere with the decision of the Recorder on the question of interim child arrangements nor indeed in relation to the case management decisions that he made in respect of which a first instance judge should be given a wide range of discretion. Having said that, the Recorder, in my judgement, failed to have any, certainly no adequate, regard to the impact on the child, DD, of the continuation of weekly contact in England in the circumstances such as they were at the time of his decision. DD was spending much of her time in Country X, where she was cared for by her mother, her main carer, who had been her main carer throughout her short life. There, she had access to her maternal family, who were nearby, and it was convenient for her stepfather to spend time with the mother and DD without risking exceeding the 90 day resident threshold.

More pertinently, weekly contact in England, as the Recorder ordered, would require DD to travel to and from England on numerous occasions. This was likely to be very disruptive to her as a one year old. As a young child, in the care of her mother, she needed routine and stability. The impact on the mother, her main carer, was obviously likely to be stressful, having to travel to and from England so often, especially as she had no desire to do so and, as the Recorder had noted, contact had been problematic. Indeed, it is evident and it should have been evident to the Recorder, that it had been stressful to her in various ways.

She also wished to be close to her family for most of the month, and to benefit from their support during what was, and remains, a difficult time for her. I do not discount it is also a difficult time for the father and indeed the stepfather.

The father’s approach to the litigation was, the mother said, of a piece with his approach to her or their relationship. Contact had, as I say, been stressful to her and that in itself was not good for DD. Indeed, it has the potential to cause her considerable harm. The Recorder reasoned that the decision was, as he put it, in relation to contact with DD’s biological father versus contact with her maternal family in country X, but that was a false dichotomy. She could have both, and it was perfectly feasible for the father to travel to country Y once a month, more practical, perhaps, than the mother and DD having to travel to England far more often than that.

The Recorder considered that for DD, regular contact was qualitatively better for her than infrequent contact. I am satisfied that the Recorder was, where he so found, comparing weekly with monthly contact, but was mistaken in relation to the proposal being for monthly contact.

The transcript at paragraph 11 approved by the court says, “monthly or fortnightly”, but counsel’s note records only reference by the Recorder to “monthly” when he gave his judgment and paragraph 21 of the approved transcript demonstrates that the judge himself recognised at the time during the hearing that he had only said monthly contact.

In any event, whilst weekly contact is less frequent than fortnightly contact, three successive days and then two successive days are arguably more frequent than the contact which was ordered by the Recorder and, in any event, would clearly benefit DD in forging a relationship with her father, more so than contacts based seven days apart each time.

In any event, the judge failed completely to consider that aspect of the comparison. The judge also failed to consider the impact on DD, both directly and indirectly, through the effect on her mother, her main carer, of having to travel herself so frequently to meet the arrangements that he ordered, and failed to consider the advantages to her welfare, that is, DD’s welfare of the proposals insofar as they benefited the mother, her main carer, who could remain for most of the month, at least, close to her family.

The Recorder placed emphasis on the need for professional supervision of the contact sessions, so that evidence could be provided to the court for further welfare determinations, but the proposal for contact put forward by the mother and stepfather allows for professional supervision on three successive days each month, which will be sufficient for the court’s evidence gathering purposes. The Recorder failed to have regard to that factor also.

The reason why the Recorder failed to have regard to clearly relevant matters is, in my view, due to his focus on the financial arguments put forward by the stepfather and mother. Those financial arguments which relate to their desire, they understandably say not just a desire, but also in DD’s best interest, to avoid triggering the residence threshold that I have referred to in relation to taxation in this jurisdiction. Those matters are relevant to the welfare balance but the Recorder treated them as the mother and step-father’s primary argument for the proposals and, in dismissing them, he thereby dismissed the proposals as a whole, without considering the other matters that were highly pertinent to welfare that I have already described.

Allowing much leeway to the Recorder for making a quick decision in a complex case under time pressure, I am afraid that I do conclude that his decision on the interim child arrangements order was wrong. I give permission to appeal as having a real prospect of success on that ground, and I allow the appeal on that ground.

I shall not remit the case for reconsideration, but rather make an order for an interim child arrangements order myself. I do so because that will avoid further necessary delay in this case that has already been caused delay for a number of reasons.

I will return to those child arrangements, but note for now that there have been changes since the Recorder made his interim order, including the effective breakdown of contact between DD and her father and the several applications made by the father, including a recent application that when the mother travels abroad, DD should live with him. There is more tension between the parties than before, and there was a considerable amount of tension, even when the Recorder had to consider matters. I must consider matters now in the light of the present circumstances, not as they were when the case was before him.

As to the appeal against the independent social worker arrangements orders, that is, the instruction of an ISW as a joint expert, I propose to deal with those afresh and to make further directions. They are needed and rather than remit for a further hearing, the parties having not been able to agree the identity of an ISW as an expert, it is pragmatic now to make orders myself identifying a suitable expert. It seems to me I do not need to determine permission to appeal, or the substantive appeal against his order in relation to the instruction of an ISW as an expert. I need to consider the matter afresh now, in the light of the fact, as he had anticipated, that the parties have not agreed the identity of such an expert.

I have considered the parties’ respective proposals with care. It seems to me that I must, in the interests of DD and effective case management and to progress these proceedings, to choose one expert who will be able to report in time or within a reasonable time, at a reasonable cost, and who is suited and has relevant experience to deal with the instructions that the Recorder identified. The remit of those instructions is not in dispute.

Having considered those matters, I will direct that the expert to be instructed Anna Sava.

As to the witness statement timetabling, I endorse the approach taken by the Recorder as efficient and the least likely to lead to further application for permission for yet further statements. The timings of the instruction of the expert and those witness statements will need to be reconsidered by the parties. I hope they will be able to come to agreement as to dates that should be put in my order. A dispute resolution appointment is listed, I understand, for the 23^rd of October 2025. That will now need to be vacated. It seems to me I can vacate that, but another date should be set down for a dispute resolution appointment. It is not for me to list matters in the CFC, and I will come to the issue of allocation shortly, but I imagine that the DRA needs to be listed not before eight weeks from today if that fits with the timetabling, that the parties will agree.

Sufficient time needs to be given at the hearing needs to be given for consideration of the child arrangements orders in the interim, the declaration of paternity and PRO, that is parental responsibility order applications, and the relocation application.

I will hear from the parties as to a suitable estimate for the time of that DRA in due course.

The prohibited steps order made in respect of the father filming the mother and stepfather at contact was, in my judgment, entirely reasonable. It cannot be said to have been wrong or to involve any error by the Recorder. A recital would have been insufficient and, in any event, the father did not agree to cease filming the mother and stepfather, and so an order was necessary and a recital would have been insufficient for the purpose. The order was, I am quite satisfied, necessary and proportionate. It was also in the best interests of DD to avoid or seek to avoid or mitigate confrontation at contact.

The undertaking, made on the 2^nd of April 2025 by the mother did not continue beyond the hearing before the Recorder and he was right, in my judgment, not to extend it. It served the purpose of preventing relocation to the USA on an interim basis. There was no objection, on my understanding, by the father to the mother spending time in Country X. She was entitled to do so in any event, for up to 28 days at a time without any permission, providing of course that she complied with the contact arrangements that had been ordered.

The father had not sought increased contact at the hearing and, in any event, he was offered increased contact by the proposal made by the mother and stepfather. The Recorder was right not to consider increasing contact so as to make up for lost contact sessions. To put it colloquially, that is not how it works. The best interests of the child are the court’s paramount consideration. Contact, and the division of time between parents with a child, is not to be approached as if they were part of a balance sheet.

The declaration of parentage application, and for that matter the parental responsibility order application were not open and shut matters suitable for summary disposal at a case management hearing listed for one hour, especially when there was so much else for the court to consider. The directions given by the Recorder were perfectly reasonable and necessary for a fair determination of the father’s applications in those respects to be made. I accept that declaration of parentage and parental responsibility are tied up with other issues in this case, and will be relevant when long term welfare decisions are made but that does not mean that the Recorder was wrong to case manage the father’s applications as he did, allowing for time for evidence to be adduced by the parties in relation to those applications.

Since the parties are here and have argued the appeal and cross-appeal, I treat that as a compelling reason to give the respondent permission to appeal but I unhesitatingly dismiss all of his cross appeals, each one of them.

Turning then or returning to the question of interim child arrangements order, and what order should now be made, I have reached the following conclusions as being in DD’s best interests, mindful of the strong mutual distrust that now exists amongst the parties, in particular between the mother and father, the need for DD to have routine and stability as a young child, and for her main carer to be relieved of any unnecessary distress, that being in DD’s own best interests. I am mindful for the need for her to establish and build a relationship with the father, also with the stepfather to whom her mother is married, but DD must not be stretched or disturbed unnecessarily by trying to meet the wishes of each of the adult parties.

I am also mindful of the financial implications of various possible arrangements. I am mindful that contact arrangements have stalled and they urgently need to be restarted. I am satisfied that, in her best interest, there should be contact between DD and her father in two periods each month, one in the capital of Country Y over two days, two hours each day and one in England, over three successive days, two hours each day. That is the timetable or the plan that was proposed by the mother and stepfather to the Recorder.

The English sessions shall begin at the end of this month. I direct that, subject to any submissions that that is simply not practical, and then they will continue at the end of each month thereafter. The English sessions should be supported by a professional supervisor and, to avoid further dispute, I shall direct that that supervisor shall be Aidhour. I understand that to be a body that can provide professional supervisors for that purpose.

I have not heard submissions on what supervision or support should be in place when contact takes place in the capital of country Y, and so I invite counsel to address me on that.

I also need to consider who might attend with the father. I am satisfied that the attendance of the paternal grandmother, his mother, has resulted in or contributed to some of the confrontations and difficulties at contact. I again will hear submissions on this, but I am minded to direct that the father can attend contact sessions alone, and that the stepfather ought not to attend the sessions. That way the chances of confrontation and hostility will be mitigated. That is not to say that I point the finger of blame at any one individual.

Turning to timetabling and instruction of an expert ISW. The expert has been identified by me and I believe that there are agreed directions, that is the directions given by the Recorder are not in dispute, other than the mechanism for the nomination of that expert. Accordingly, those directions will have to be updated to the present time going forward.

The matter of the listing of the dispute resolution appointment will, as I say, be a matter for the Central Family Court.

As to allocation, I am content that allocation should remain with a circuit judge, notwithstanding the submissions that I should consider whether this should be heard at a High Court level, and I am satisfied that this appeal should not be a route to any different allocation. The case does have complexities, but not such that it should not remain in the Family Court before a circuit judge. Judge Marin, for example, is perfectly able to manage and determine this case. If it assists, then I am content to write to the designated Family Judge for the Central Family Court and/or the family presiding judge for London to urge them to ensure that the case is listed for DRA as soon as possible after an appropriate date that can be inserted in the order.

As to the costs of the father’s application, heard and adjourned on the 5^th of September, I am not prepared to make an adverse costs order against him. I should emphasise that I have come to that decision after careful thought, and not without some hesitation. He ought not to have made that application, but he was a litigant in person at the time. I accept that he was very anxious that contact with his young child had ceased, and that the mother was spending so much time abroad. He could and should have agreed arrangements to allow contact in England, but he was no doubt stressed by the fact that he was in the situation he was in, and which he had not anticipated. He was unwise, perhaps headstrong, and he overstated his case but I am satisfied that he did not act reprehensibly or in any other manner which would justify a departure from the usual order for costs in children proceedings, that there should be no order.

That said, and I say again, he sailed close to the wind, and he will lose the benefit of the doubt on any future or repeat occasion if he makes an application of a similar kind and he is warned. Indeed, all the parties are warned that they are in real danger of sacrificing DD’s best interests as they become mired in mutual distrust and are anxious to avoid others taking what they perceive as a litigation advantage. I urge all the parties to step back and to consider how they can progress this litigation in DD’s best interests.

However, in conclusion, I grant permission to the stepfather to appeal, and I allow the appeal against the interim child arrangements order made by the Recorder. I give the father permission to cross appeal, but I dismiss his cross appeals. I shall make the directions indicated regarding the single joint expert witness statements, and I will invite the CFC to list the matter before a circuit judge on the first available date, I think after eight weeks would be suitable, with an estimate for the hearing to be discussed at now.

I make no order as to costs as to the application heard by Judge Marin. I invite submissions on the question of professional supervisor or other support when contact takes place in the capital of Country Y, and on who might attend with the father or with the mother other than a professional supervisor at any contact sessions.