SQ25P00020 - [2025] EWHC 2135 (Fam)

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.