SQ25P00020 - [2025] EWHC 2135 (Fam)

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.