[2025] EWHC 1648 (Fam)

On behalf of the father, Ms Markham KC and Ms Whelan, submitted by way of a preliminary issue that it was not open to the mother to raise arguments at this appeal on the basis of the text messages, as this aspect of her case had been articulated in ground 4 of her Grounds of Appeal, in relation to which she had been refused permission to appeal.

Alternatively, Ms Markham KC and Ms Whelan submitted that the judge could not be criticised for not directly addressing the text messages in his judgment in circumstances where (i) none of them was put to the father in cross-examination, (ii) the mother’s schedule of allegations did not seek specific findings in relation to any messages apart from those sent on 7 December 2015 as to which her counsel stated expressly that these were not relied upon as evidence of abuse, and (iii) it was not suggested on behalf of the mother in her closing submissions that specific findings were sought in relation to text messages; they were referred to in just two lines of the document as part of the ‘[e]vidence relied upon as to the father’s character, demeanour and presentation apart from the mother’s evidence’ (something similar was said in the mother’s opening position statement for the hearing).

Ms Markham KC made the point that it would be wholly unfair for an appellate court to attempt to make findings about the messages when the father was not given any opportunity to comment upon them in his evidence. She says that had findings been sought in relation to the messages, it would have been necessary for the court below to have considered the context in which they were sent. She emphasised that a significant number of the messages now relied upon were sent in circumstances where the father, for the second time, was having to defend himself against serious and false allegations of sexual abuse including abuse against his own daughter; as a consequence of the allegations he was facing, his relationship with his daughter was in the process of being severed.

Ms Markham and Ms Whelan do accept that the recitals to the order do not adequately reflect the findings made by the judge and therefore concede that, to this extent only, the appeal should be allowed.

As to the Recorder’s judgment, Ms Markham KC and Ms Whelan emphasised the limited ability of the appellate court to interfere with findings of primary fact by the trial judge as well as the judge’s evaluation of those findings.