SQ25P00020 - [2025] EWHC 2135 (Fam)

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.