R v P (Appeal: Dismissal of Private Law Proceedings at Directions Hearing) [2026] EWHC 2215 (Fam)

[2026] EWHC 2215 (Fam)Case No FA-2026-000157
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON APPEAL FROM THE FAMILY COURT
AT DERBY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 August 2026
Before
THE HONOURABLE MR JUSTICE HARRISON
Between
RAppellantPRespondentR v P (Appeal: Dismissal of Private Law Proceedings at Directions Hearing)
Ms Gina Allwood (instructed on a direct access basis) appeared for Appellant FatherMs Madeleine Whelan (instructed by Aria Grace CIC) appeared for Respondent MotherHearing Hearing dates: 13 and 14 July 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 20 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE HARRISONThis judgment was delivered in public but a reporting restrictions order is in force. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family and the parties must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]This is an appeal against an order made by HHJ Williscroft (‘the judge’) on 18 March 2026. The proceedings concern a girl to whom I shall refer as ‘G’ who is now aged nearly 8. The parties to this appeal are respectively G’s father and mother.[2]The father seeks to appeal the judge’s decision to terminate his application for contact with G at a one-hour directions hearing which followed a fact-finding hearing, making an order which limited him to indirect contact and imposing a restriction on the making of further applications pursuant to section 91(14) of the Children Act 1989.[3]The father has been represented by Ms Allwood. The mother has been represented by Ms Whelan. I am grateful to both counsel for their very helpful written and oral submissions.[4]Following a recent hearing before MacDonald J the mother proposed compromising this appeal on the basis that it would be remitted for a further hearing before the judge with a direction for the instruction of the psychologist she previously proposed. The father did not agree to this, asserting that the matter needed to be before a different judge with a direction for the appointment of a children’s guardian or a section 7 report. There were no further attempts to find a way forward. It is disappointing that the parties were unable to come to a sensible compromise or at least to agree that the question of directions be determined by the court, instead requiring valuable court time to be taken up hearing this appeal in full.

Legal principles

[5]Legal principles Rule 30.12 (3) of the Family Procedure Rules 2010 provides that the appeal court will allow an appeal where the decision of the lower court was –(a) wrong; or(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.[6]As Ms Whelan submits, there is a generous ambit afforded to first instance judges when they exercise a discretion in children cases. In G v G [1985] UKHL 13 the House of Lords held in this context: “… the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible. The principle was stated in this House by my noble and learned friend Lord Scarman in B. v. W. (Wardship: Appeal) [1979] 1 W.L.R. 1041, where, after mentioning the course open to the Court of Appeal if it was minded to reverse or vary a custody order he said, at p. 1055: "But at the end of the day the court may not intervene unless it is satisfied either that the judge exercised his discretion upon a wrong principle or that, the judge's decision being so plainly wrong, he must have exercised his discretion wrongly."[7]The need for appellate caution was also emphasised in Piglowska v Piglowski [1999] 1 WLR 1360 where Lord Hoffman hneld at 1372:
“An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”
[8]As to the sufficiency of judicial reasons, in Re F (Children) [2016] EWCA Civ 546 Sir James Munby, P held that “[t]he task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard”; that a judgment need not “slavishly restate either the facts, the arguments or the law”; and that there is “no duty on a judge, in giving his reasons, to deal with every argument presented by counsel”.[9]This case concerns a decision to make final orders at one hour directions hearing. It is common ground that, in an appropriate case, the power to do so exists, as was reaffirmed by the Court of Appeal in Re A, B and C (Child Arrangements: Final Order At Dispute Resolution Appointment) [2025] EWCA Civ 55, where Baker LJ considered the court’s ability to make a non-consensual order at a Dispute Resolution Appointment (‘DRA’) and summarised the position at [44] as follows:
“Even where the parties are unable to reach an agreement, the court has the power to bring the proceedings to an end if satisfied that such a course is consistent with the welfare of the children, which under s.1 of the 1989 Act is the paramount consideration whenever the court is determining any question about the children’s upbringing”
[10]In support of that conclusion, Baker LJ referred to the judgment of Sir James Munby, P in Re C (Children) (Residence[11]Baker LJ went on to consider the extent to which at a DRA the court is entitled to make final decisions having regard to evidence which is disputed. He said at [55]-[56]:
“At a DRA, when deciding whether or not there should be a further investigation and full hearing, a judge has to assess the information put before her. Pragmatically, that cannot be confined to agreed evidence. When deciding whether it is in the interests of the child to authorise a full court investigation or to conclude the proceedings at the DRA, the court is not obliged to disregard any piece of contested evidence and only take into account matters that are agreed between the parties. That would undermine the court’s powers to control and conduct proceedings in accordance with the paramountcy of the child’s welfare. The judge has to consider the information put before her, recognise that it is not necessarily the complete picture and in some respects contested, and come to a view as to whether a full court investigation is necessary and proportionate. Where the judge concludes that such an investigation is neither necessary nor proportionate, she will often proceed on a basis that in some respects is not accepted by all the parties and has not been the subject of findings. Of course, there is a limit to the circumstances in which a court can properly and fairly proceed in that way. It will turn on the details of the contested issues and the proposed outcome. At one extreme, for example, where a party is alleging that the other parent has sexually abused the child and that as a result all contact should be supervised, it will be difficult if not impossible for the court to make a final order without making formal findings about the allegations. But where the proposal is for a less radical adjustment of the child arrangements order, it will often be open to the court to reach a conclusion without a fully contested hearing. This is a decision which can largely be left to the skill and experience of the family judge without appellate interference.”

Background

[12]The proceedings below concerned primarily the father’s application for a child arrangements order to spend time with G. She is the parties’ only daughter and was born during the course of a relationship which lasted from 2014 until their separation in 2023. The parties were married but are now divorced.[13]The father is an Indian national who was first granted leave to remain in this jurisdiction in 2016. The mother is a UK national with Indian heritage. She has significant health difficulties, summarised by

the judge as follows:

“She was diagnosed with Lupus in 2003 and has had intensive medical treatment for this since, a condition which can leave her very tired and have serious consequences. Those include secondary fibromyalgia, secondary immunodeficiency, Bauwens disease, cancer in her breast, hypothyroidism and other conditions. It is treated by steroids and chemotherapy. She told the court she ended her first marriage when she became ill and returned home. She has a very considerable number of medical appointments and treatment. She has also suffered from poor mental health in recent times.”
[14]G has also has issues with her health.

The judge said:

“[She] has had a very difficult start in life and her heart issues have required considerable oversight and operations. She is currently well but needs attuned caregiving. She is now awaiting an assessment and an educational support plan as her mother believes that she has autism. In the court papers is a handwritten questionnaire about this”
[15]The father’s application was issued on 10 January 2024 but made slow progress through the courts. On 1 May 2024 an order was made for a welfare report to be prepared by Cafcass pursuant to section 7 of the Children Act 1989.[16]The Cafcass report was completed on 23 July 2024. The author made a recommendation that the court should make an order for G to reside with her mother and spend time with the father beginning on a supported basis at a contact centre and moving to contact in the community once G was ‘comfortable’ with the arrangements. Although the mother had made allegations of domestic abuse, the view of the Cafcass officer was that a fact-finding hearing was unnecessary on the basis that ‘taken at their highest’ the allegations would not prevent G from having a meaningful relationship with her father.[17]G was not yet 6 when the report was prepared. She spoke to the Cafcass Officer and communicated that she did not feel safe with her daddy but did not know why. She spoke about going on holidays “if Daddy gives her passport back”. She said that “Daddy making Mummy cry” made her feel sad, as did “Daddy shouting”. More positively, she was able to say that she loved “playing Barbies with Daddy”.[18]The mother filed a complaint against the Cafcass Officer raising a number of issues. Although some aspects of the mother’s complaint were rejected, the service manager upheld it in certain significant respects and recommended that a fact-finding hearing be listed to determine the factual basis for the mother’s concerns and that a new family court adviser should be appointed to the case following the conclusion of that hearing.[19]Thereafter the court determined that a fact-finding hearing should be listed, although there was then significant delay as a consequence of the mother’s ill health. The matter eventually came before HHJ Williscroft over five days at the end of January 2026.[20]The allegations raised by the mother were set out in a schedule and statements. The “key issue” identified by

the judge was her allegation that throughout the parties’ relationship:

“the father’s sole motivation was to get a stay in the UK. She believes it is clear he is uninterested in their daughter’s life and invited the court to remove his name from the child’s surname and to allow only indirect contact. She not only told the Home Office of their separation but wishes them to deport him. She has now said she always intended to suggest the child should have a double-barrelled surname but this has never been apparent in evidence.”
[21]The various allegations made by the mother were “grouped together” by the judge as follows:a. The father has exploited the mother to obtain immigration status in the UK, causing emotional and psychological harmb. The father continues to exploit G and the family court to obtain long- term immigration status in the UK, causing significant emotional harm to Gc. The father has intentionally deceived the Home Office with the aim of fraudulently obtaining a visad. The father is neglectful of and uninterested in G and does not have a genuine motivation to have a relationship with here. The father was coercively controlling towards the mother in the following ways: i. Taking large sums of money from the mother with no intention of repaying her ii. Being physically aggressive towards the mother iii. Shouting and screaming at the mother over minor issues iv. Verbally abusive and belittling about the mother’s appearance v. Threatening to remove G to India vi. Undermining the mother’s friends and family causing isolation vii. Mocking the mother’s disabilityf. The father is using the family court system to prolong his abuse of the mother[22]The judge found some, but not all, of these to be established. She summarised her findings on the allegations at the conclusion of her judgment as follows:a. The parties relationship was based on love as well as the father wishing to marry a UK citizenb. The father has intentionally deceived the Home Office by not telling the truth about his family circumstances in Indiac. The father was coercively controlling towards the mother in the following ways: i. Being physically aggressive towards the mother ii. Shouting and screaming at the mother over minor issues iii. Being verbally abusive and belittling about the mother’s appearance iv. Threatening to remove G to India v. Undermining the mother’s friends and family causing isolation vi. Mocking the mother’s disability[23]The judge’s finding in(a) was not a finding of domestic abuse, but in essence a rejection of the mother’s case in relation to what the judge had identified as the key issue. Her finding in(b) was also not a finding of domestic abuse; moreover, as was accepted on behalf of the mother the summary does not accurately reflect the judge’s actual finding as to the manner in which the Home Office were deceived which was said in para 53 to be that “he chose to use the mother’s poor health to get a visa and described the care he would provide”. As to this, it is of note that the judge also found the mother was involved in any deception that took place, holding at para 16 that “A long description about his responsibility for the mother's health was written in his application. I formed the clear impression this was informed by both what his lawyer had told him would help and information from the mother who was there at the interview with the solicitor. I didn't feel this was exploiting the mother as she asserts, but was a reflection that both of them wanted him to stay so that their relationship would continue and they wished to give the best evidence to achieve that. In retrospect, the mother sees this a different way now it is clear. However, at the time I was satisfied this was a genuine application made to stay on genuine grounds.”[24]It is important to read the fact-finding judgment as a whole in order properly to understand the findings of abuse and other behaviour made against the father as well as the findings which the judge made against the mother.[25]The judge found that some of the father’s behaviour was selfish but fell short of being abusive. He did not provide the mother with the support she needed following G’s birth and, for example, did not accompany her to many appointments. He exploited the goodwill of the family by using the mother’s car when she needed it herself and prioritised providing financial support to his family in India over contributing to the household economy, coercing the mother and grandmother to subsidise him.[26]The judge’s most serious finding, in my view, was that the father had been repeatedly verbally and psychologically abusive to the mother both alone and in the presence of others by undermining her, criticising her appearance, shouting at her and gaslighting her. The grandmother, found by the judge to be a convincing witness, had overheard the father’s abusive behaviour towards the mother “many times”, including him isolating the mother by criticising her friends or being angry when they went out. Especially unpleasant was the father’s comment to the grandmother following a period of contact that:
“I used your disabled daughter and now I want to use my disabled daughter”
. The father also threatened to commit suicide to procure the mother’s support for his visa application. He was physically aggressive on two or three occasions and he had made comments about taking G to India in order to upset or threaten the mother.[27]On the judge’s findings, the father’s abusive behaviour was aggravated by the fact that he knew the mother to be psychologically vulnerable and that it was controlling and coercive behaviour which was “designed to have an effect on her”.[28]The judge found that the mother suffered from fragile physical and mental health and that she was “very poorly indeed”. The judge did not accept the proposition that the father’s abuse had caused the mother’s medical conditions but it is nevertheless apparent from the judgment that it had had a serious impact upon her mental health. The stress caused by the mother’s unhappiness had resulted in a real deterioration in her health; according to the grandmother, she was becoming “a shell of a person”. The mother’s friend had seen her change from being a bubbly character to someone who was very subdued and quiet.[29]Despite the serious nature of the judge’s findings, she was prepared to accept that the father possessed a number of positive qualities. He had been happy to become a father and was proud of his baby daughter. Photographs demonstrated a loving relationship between him and G. Although he had not been involved in G’s care, he had played with her when he was at home. He wanted to have contact with her “for genuine reasons”. The judge made the pertinent observation that “[t]he father must have good points as well as bad and G is made up of part of him”.[30]The judge also expressed her concern about aspects of the mother’s evidence and made a number of relevant findings against her. She rejected some of the more serious allegations made by the mother, including in relation to the “key issue” to which I referred above, finding that the father married the mother for love, albeit realising that the marriage would have the benefit of enabling him to reside in the United Kingdom. She further rejected the mother’s case that the father had no genuine interest in G and that he was using the family court system abusively for the collateral purpose of enhancing his chances of obtaining a settled immigration status.[31]The judge was rightly concerned about representations made by the mother and grandmother to the Home Office which were intended to lead to the father’s immigration status being revoked with the ultimate objective of him being removed from the jurisdiction back to India. The mother had immediately informed the Home Office following the parties’ separation and employed a private detective in order to gather evidence to demonstrate that the father was not working. In a letter written in 2023, the mother and grandmother had said the following to the Home Office:
“I hope to legally take full Parental Responsibility alongside my daughter. We are hoping to change [G]'s surname and erase all memory of [the father] so that she has a fair chance of succeeding in life with no negative influences.”
The judge found that this accurately reflected the mother’s wishes “then and now”. The mother was “unwilling to recognise anything positive about the father at all” and could not “accept a possibility that he had loved her and loved [G]”. The mother had made an application to change G’s surname and was untruthful in her oral evidence when she asserted that her aim was for G to have a double-barrelled name. The judge also found that the mother had cut off the paternal grandmother during her pregnancy.[32]Despite the mother’s fragile mental health, the judge found that she was patently “well educated and confident, well able to challenge questioning in court”. She formed the view that the mother “had now reevaluated the whole of their relationship seeing herself as a victim of a man whose sole intention was to stay in the UK”. She was clear that writing the father out of G’s life, as the mother was seemingly intent upon doing by her actions aimed at revoking the father’s immigration status, was not consistent with G’s welfare.[33]At the conclusion of the fact-finding hearing the judge listed the matter for a one hour directions hearing. She directed the parties to file five-page statements responding to the judgment. She provided that any party seeking permission to instruct an expert should issue a Part 25 application by 20 February 2026. Her order gave permission for the papers to be disclosed into the ongoing judicial review proceedings brought by the mother against the Secretary of State for the Home Department.[34]The judge also made an order for indirect contact which provided for the father to send communications to G including a photograph of himself to her home address at a frequency of no more than every two weeks. The mother was to encourage G to read and/or respond to the communications.[35]In accordance with the judge’s directions, each of the parties filed short statements responding to the fact-finding judgment. Although I have not heard argument on this specific issue, I have some reservations about the utility of this course. If, in the aftermath of a judgment, a party files a statement accepting all of a judge’s findings against them, this must surely give rise to questions about whether that acceptance is sincere or whether it has merely been proffered to appease the court. For the father to come to a genuine acceptance of findings made about his conduct is likely to require more than the filing of a statement and to entail some form of specialist work.[36]The mother was alive to the issue which I have just identified. In her statement she expressed her worry that the father “may now change course and file a statement that suddenly accepts the findings in full, or says he agrees with everything the Court has found, in order to push matters forward quickly” stating that were he to do so she would find it “destabilising and retraumatising”. The mother also described in her statement that her health was “deteriorating rapidly under sustained stress” following the fact finding hearing. She said she had been unable to facilitate the indirect contact which had been ordered, stating, for example:
“Since the order, my home has stopped feeling like a place where I recover. I feel as if I am waiting for the next thing to arrive. The sound of the letterbox makes my stomach drop even if it is my medicine arriving. My heart races before I even know what the post is. My hands shake. I feel sick. I hold my breath without meaning to. What frightens me is how automatic it is. It is as though my body is saying: he can still reach you.” … “Since the [contact] order was made, I have tried to approach [it] in the way the Court expects. However, in reality, I have not been able to comply with [the order for indirect contact] in any meaningful or consistent way because each [time] my body goes into alarm and the atmosphere in our home changes immediately. If I try to force it, [G] will sense what is underneath. If I hold it back to protect her, then I have not done what [the order] expects. Either way, I am left trapped between the wording of the order and what is actually happening inside me, which I cannot hide.”
[37]The mother explained in her statement that, given her reaction, the instruction of a psychologist was now “absolutely necessary” asserting that “[t]he Court needs independent evidence about my triggers, the impact of the findings and what is realistically required before I can be expected to carry the burden [the order for indirect contact] places on me”.[38]The mother appended to her statement letters from her treating clinicians in support of her contention as to “the grave and escalating effect these proceedings and Father related contact triggers are having on my physical and mental health including a material deterioration in my capacity to cope and function day to day”.[39]In his statement, the father said that he agreed with “the majority” of the court’s findings. He did not accept having misled the Home Office. As for his domestic abuse, despite ostensibly accepting the findings, that supposed acceptance was couched in careful language which betrayed the fact that he did not in reality do so. By way of example, he did not accept that he had been physically aggressive towards the mother, merely that he “may have come across” that way and that she “may have believed” he was going to become physically aggressive. He did not accept the findings of verbal and psychological abuse except to a very limited extent indeed.[40]At the hearing on 18 March 2026 the judge was quite right to reject the suggestion that the father had accepted the majority of the findings. Quite plainly the opposite was the case.[41]On the basis of the mother’s written evidence, the judge held that she was a capable, caring parent who was “very, very badly affected by even indirect contact to [G] to the extent that I am confident that it would affect her capacity to parent.” She determined that it was not necessary to order expert evidence from a psychologist. She further held that as a result of the impact of the indirect contact on the mother: “pursuing looking at how a form of contact that is not just indirect might take place, either by involving an officer from CAFCASS again, or father suggests a Guardian acting independently for the child, is not going to give the court any further information than the information it already has”.[42]The judge reminded herself that G’s welfare was paramount and that she needed to take into account the welfare checklist, emphasising that “[i]t is of course important that a child has the opportunity to have a relationship with both their parents” and that based upon the previous Cafcass report G could remember “some good things and some bad things about her father’s involvement in her life”. Referring to paragraph 35 of Family Procedure Rules 2010, PD 12J, the judge reminded herself that she could only make an order for contact if she was satisfied that:
"The physical and emotional safety of the child and the parent with whom the child is living can as far as possible be secured before, during and after contact, and that the parent with whom the child is living will not be subject to further domestic abuse by the other parent"
On the information available to the court she was unable to be so satisfied.[43]The judge decided that it was in G’s best interests to make a further order for indirect contact six times a year on the basis that it would be managed by the maternal grandmother. Such an arrangement, she held, would enable G “to know that she is in her father’s mind and thoughts, and that he loves her, and hopefully something about him, but not de-stabilise the arrangements that she has being cared for by her mother”.[44]On the basis that she had made findings of domestic abuse, the judge went on to consider whether to make an order restricting further applications from being made pursuant to section 91(14) of the Children Act 1989. She determined that such an order was appropriate for 24 months, holding that:
“In the big picture the father has wanted to see his child, because I accept that he loves her and wants to spend time with her, but he has not taken on board the impact of his behaviour on his family in effect, and the impact of that we know has been of such a serious nature, and the impact of court proceedings of such a serious nature, on the mother, who was unable to manage two separate court hearings that were set up because of her health and its impact, that I am persuaded that the mother, and mother as a parent of G, needs a break from litigation.”

Submissions

[45]The father seeks to appeal this decision, relying upon grounds of appeal and a skeleton argument settled by his former counsel and upon amended grounds and a further skeleton argument settled by Ms Allwood as well as her oral submissions.[46]In essence, Ms Allwood submits that the judge’s decision about contact was both procedurally irregular (Ground 1) and wrong (Ground 2). She submits that the judge should not have proceeded to make a determination without a further report from Cafcass or a children’s guardian. Her substantive decision disregarded the positive benefits of contact for the child and placed too much weight on the mother’s health and the father’s statement in response to the court’s findings while not giving proper weight to his willingness to engage in domestic abuse perpetrator programmes. She submits that the judge failed to consider alternative options for direct contact which would not have involved the mother.[47]By her amended grounds of appeal (Grounds 5 and 5A), Ms Allwood submits that the judge was wrongly influenced in her decision by issues relating to the mother’s medical and psychological health without any “Part 25 expert evidence capable of supporting [her] conclusions”. Instead, she relied upon the mother’s medical records and letters from her clinicians which substantially consisted of the mother's self-report and which the father was unable properly to challenge.[48]Ms Allwood further submits that the judge was wrong to make a section 91(14) order in circumstances where the court was dealing with the father’s first and only application for contact and such an order was not warranted in the interests of the child.[49]During the course of her oral submissions, Ms Allwood made the point that the mother’s assertion that the proceedings are having an adverse impact on her mental health is inconsistent with her ongoing pursuit of judicial review proceedings against the Secretary of State for the Home Department, with the object of rescinding the father’s immigration status and ultimately procuring his removal from the jurisdiction. Such action is being pursued by her in the face of the judge’s finding that seeking to write the father out of G’s life is contrary to her interests.[50]In support of her submissions Ms Allwood provided the Court with a narrative of the steps taken by the mother in connection with the father’s immigration status. He was granted leave to remain in this jurisdiction on 16 December 2024. Upon learning of this, the mother complained to the Home Office and sought to procure reconsideration or cancellation of that decision. The Home Office determined that there was no basis for doing so. The mother then sought to challenge the decision of the Home Office by issuing judicial review proceedings against the SSHD. On 27 November 2025, Upper Tribunal Judge Kebede refused the mother permission to bring the proceedings. The Judge held, in substance, that the mother lacked standing: she had no public law right directly affecting her, but only a collateral interest in the immigration position of a third party.[51]On 19 January 2026, the mother sought permission to rely upon amended grounds which effectively challenged the grant of leave itself. She also sought urgent interim relief so that her immigration challenge would be determined before the Family Court fact-finding hearing began on 26 January 2026. Upper Tribunal Judge Lodato refused that application on 20 January 2026.[52]The mother then made a further application for interim relief on 17 February 2026. She sought an order compelling the Secretary of State to review the father’s leave within 42 days of the fact-finding judgment rather than awaiting the final conclusion of the Family Court proceedings. That application was refused by Upper Tribunal Judge O’Brien. The Judge held that it was appropriate for the Home Office to await the conclusion of the Family Court proceedings, that no legitimate expectation was being frustrated and, again, that the mother lacked standing. The mother was ordered to pay the Secretary of State’s costs of £732.[53]Following the order of 18 March 2026, the mother continued the judicial review proceedings. On 7 April 2026, she applied to replace her grounds and to rely upon further evidence, including the findings made by HHJ Williscroft. On 23 April 2026, permission was again refused. The mother was ordered to pay a further £2,892 in costs, and permission to appeal to the Court of Appeal was refused.[54]Based upon the above narrative, Ms Allwood characterises the Mother’s judicial review litigation as having involved repeated attempts to reformulate the claim, seek urgent interim orders and secure executive action against the father’s immigration status, despite successive findings that she had no standing, that the Family Court was the proper forum, and that it was rational for the Secretary of State to await the conclusion of those proceedings. I consider that to be a fair summary of the position. I further note that the mother has caused G to be a party to the judicial review proceedings. This means that G, through her mother, has been pursuing an action aimed at securing her father’s removal from the jurisdiction in the face of a judicial finding that this would be contrary to her interests.[55]On behalf of the mother, Ms Whelan emphasises the principles relevant to appeals against the exercise of a judicial discretion in children cases, which I have set out above, and submits that it cannot be said than on an application of those principles the judge’s decision was either wrong or procedurally unjust. She says that the judge was entitled, in the light of the information available to her, to determine that it was in the child’s interests to bring the proceedings to a conclusion.[56]Ms Whelan further submits that, in coming to her decision, the judge was entitled to have regard to the evidence provided by the mother’s clinicians, even though it had not been commissioned pursuant to FPR 2010, Part 25. She drew my attention to section 13(1) and (2) of the Children and Families Act 2014 which, read in combination, provide that where a person without the permission of the court has commissioned expert evidence for use in children proceedings, such evidence “is inadmissible in children proceedings unless the court rules that it is admissible”. Although there is no express ruling from the judge that the evidence relied upon by the mother was to be admissible, Ms Whelan makes the point that it was not suggested on behalf of the father at the hearing below that the judge was precluded from considering it.[57]Ms Whelan emphasises that the court is not required in every case to make a direction for a section 7 report. That much is clear from the decision in Re A, B and C (above) where no report had been ordered. She acknowledges the well-established principle articulated in Re D (A Child) (International Recognition) [2016] EWCA Civ 12that in every case the court is obliged to consider whether and if so how to hear the voice of the child. Here, she points to the fact that the child’s wishes and feelings had been canvassed during the course of the previous section 7 investigation. Although the mother’s complaints about the preparation of the report had been in part upheld, the court was nevertheless entitled to have regard to the views which the child had expressed to the previous Cafcass Officer. In circumstances where the child had not had any form of contact with the father since then, it was unlikely that anything meaningful could be gained from interrogating her views once again.[58]Although the judgment below does not refer to the judicial review proceedings, Ms Whelan submits that the judge was aware of them, as she made an order permitting disclosure of the papers to the Upper Tribunal.[59]Ms Whelan submits that in pursuing his case the father is in effect seeking to suggest that the mother is engaging in emotionally harmful or alienating behaviour towards the child. She reminds me of the guidance of the Family Justice Council in this context which was recently endorsed by the former President, Sir Andrew McFarlane in Re Y (Experts and Alienating Behaviour: The Modern Approach) [2026] EWFC 38. Paragraph 18 of the guidance provides as follows: Ms Whelan emphasises that the court should not confuse a case involving the traumatic response of a parent who has suffered domestic abuse with cases where a parent has engaged in alienating behaviours which have no justifiable cause. “Given the relative impact of domestic abuse, the harms that flow from it and the importance of protecting children, Alienating Behaviours will not be found in cases where findings of domestic abuse are made which have resulted in a child’s appropriate justified rejection (AJR), or in protective behaviours (PB) or a traumatic response on the part of the victim parent.”[60]Ultimately, Ms Whelan submits that this was a straightforward case in which the father was found to have perpetrated domestic abuse, but had not accepted the findings. The mother had provided compelling evidence as to the impact which even limited indirect contact had on her health. The father had not indicated a willingness to attended a domestic abuse perpetrator programme other than as an afterthought in response to submissions made on behalf of the mother. In all those circumstances, the court was not wrong to conclude that there was no utility in taking the case any further. She submits that “it is not for the court to invest money in parents who have behaved badly and refuse to accept the court’s findings”.[61]In relation to the order made pursuant to section 91(14) of the Children Act 1989, Ms Whelan emphasises that this was a case in which the court had made findings that the father was a perpetrator of domestic abuse. Although no application had been made for a section 91(14) order, section 91A(5)(b) empowers the court to make such an order of its own motion. Section 91A(2) enables the court to make a section 91(14) order in circumstances, among others, where it is satisfied that the making of a further application by the father would put the child or the mother at risk of harm. Ms Whelan submits that such a conclusion was plainly open to the judge, given her previous findings including her findings about the mother’s health and the more recent medical evidence adduced by the mother.

Analysis and conclusions

[62]Analysis and conclusions I have a considerable degree of sympathy with the majority of the submissions advanced by Ms Whelan and, in particular, for the position in which the judge found herself. She had made findings of domestic abuse which the father had not accepted. She was entitled in those circumstances to question whether there was anything to be gained from continuing the proceedings. It is plain that the judge had the power to bring proceedings to an end without listing the matter for a final hearing. In exercising her discretion, it was obviously relevant that the judge had already conducted a fact-finding hearing and, through the process of hearing evidence, had been able to form a view of the parties. It was also plainly relevant for the judge to take into account her justified conclusion that the father had refused to accept the court’s findings save to a very limited extent. Subject to the matters I address below, I further agree in principle with Ms Whelan’s submission that the judge was entitled to come to the view that she had sufficient evidence as to the child’s perspective to proceed to a determination without ordering a further section 7 report.[63]Ultimately, however, I have come to the conclusion that the judge’s decision cannot stand for essentially two reasons, the second related to the first.[64]In my judgement, the mother’s ongoing and vigorous pursuit of the judicial review proceedings was highly relevant to the overall welfare analysis. First of all, it was inconsistent with the case advanced by the mother that the pursuit of these proceedings was so harmful to her mental health as to require them to be brought to a swift conclusion. In this context, I was unimpressed by the submission made on behalf of the mother that she had not needed personally to attend court hearings in connection with the judicial review. That may be so, but as the client she was inevitably the driver of the litigation. In any event, it was accepted that she had in fact chosen to attend at court for the most recent hearing on 23 April 2026.[65]The second reason the judicial review proceedings were relevant was that they reinforced a finding already made by the court that the mother’s wish was to eradicate all memory of the father from the child and, in effect, to write him out of existence, an outcome which the judge had made clear would be contrary to the child’s interests. By her ongoing pursuit of the judicial review, the mother had demonstrated no change in her attitude in the light of the judge’s findings. This, in my judgement, raised real doubt as to whether any form of indirect contact could ever be effective in maintaining for the child a positive impression of her father and the knowledge, if nothing else, that she was dearly loved by him. None of the indirect contact which the judge had ordered had taken place, and there was limited cause for optimism that the involvement of the grandmother would be any more effective; she had after all been a co-signatory of the letter to the Home Office to which I have referred above. Given the extent to which the issue was pursued by the mother, I find it very difficult to see how her actions could be regarded as “a traumatic response” to the domestic abuse which had been perpetrated against her.[66]I reject the submission that in exercising her discretion the judge must have been aware of the ongoing judicial review proceedings. There is no indication in either the position statement prepared on behalf of the mother or in the transcript of the hearing that the judge was made aware that, notwithstanding her finding that the mother’s attempts to write the father out of the child’s life were contrary to the child’s interests, the mother had continued her vigorous pursuit of proceedings aimed at achieving this outcome and that she intended to continue doing so. The transcript of the hearing shows that after the judge had given her oral judgment, Ms Whelan made a simple request for “disclosure to the Home Office in respect of judicial review proceedings”. I do not consider that this can begin to satisfy the obligation of the mother to make the judge aware of all relevant circumstances affecting the child’s welfare, especially as the request was made after the judge had given judgment. The mother’s determined and ongoing pursuit of litigation in the face of the judge’s previous findings was clearly a matter that needed to be disclosed. By withholding this information the judge was prevented from exercising her discretion on a proper basis.[67]I accept the submission by Ms Whelan that the judge was entitled to take into account the medical evidence from the mother’s clinicians. Although the judgment does not make clear that she considered the admissibility of the evidence through the prism of section 13 of the 2014 Act, this statutory provision will have been extremely well known to this experienced judge. In circumstances where the issue was not raised on the father’s behalf, it is difficult for him now to criticise its absence from the judgment.[68]Nevertheless, the fact that the evidence was not being adduced by experts instructed in accordance with FPR 2010, Part 25 was inevitably relevant to the weight to be attached to it. To a significant extent, the opinions expressed by the experts were based upon the mother’s self-report. By contrast with the responsibility of a court-appointed expert to consider analytically statements made by the subject of an assessment, a treating clinician will generally have no reason to do other than take at face value that which their patient communicates to them. The judge had previously made findings which, as a minimum, suggested that the mother could not be relied upon as a narrator. The clinicians had not had cause to comment upon the significance of the mother’s ongoing pursuit of the litigation to which I have already referred; in common with the judge, they had not been made aware of it.[69]I am unable to accept Ms Whelan’s submission to the effect that the court should not waste its resources for the benefit of a father who has refused to accept its findings. It must not be forgotten that whatever faults he may have as a father, it is the child who has a right to have a relationship with him, provided it can safely be achieved. She, and not the father, is the court’s focus. The court should not lightly cast aside the long-term significance for her welfare of growing up without any meaningful relationship with her father or potentially even knowledge of him.[70]I do not in any way seek to minimise the serious findings of domestic abuse made against the father, but I do not consider that they fall into the category of severity whereby, without more, the court should inevitably conclude that any form of direct contact will be contrary to the child’s interests, especially in circumstances where there must be a real doubt about the effectiveness of a regime of indirect contact. The father’s inability to accept the findings against him may well limit the court’s ability to make orders for direct contact which are safe, but on the facts of this case – particularly the mother’s determined efforts to cause the revocation of the father’s immigration status – I do not consider that to be a sufficient justification to write off on a summary basis the potential for the child to benefit from any form of direct contact.[71]I entirely accept that the potential benefit to the child of having contact with the father may ultimately have to yield to the harmful impact which ongoing contact may have on her primary caregiver. Given what I consider to be a complex and nuanced evidential picture which was not drawn to the attention of the judge, however, I have come to the conclusion that her determination that she could make a decision of this significance on a summary basis cannot stand.[72]I propose to set aside the judge’s order and to remit the matter for reconsideration. I shall refer the matter to Harris J so that the case can be reallocated. I propose to make an order appointing a children’s guardian for the child; this is justified by the unusual and complex circumstances of a case involving both findings of domestic abuse and a caring parent seeking to write the other parent out of the child’s life. I make the order at this juncture to enable the guardian to have input in relation to any case management directions which may be sought including in relation to the instruction of a psychologist.[73]As I have determined that the order must be set aside and reconsidered, it is unnecessary for me to deal with the competing arguments in relation to the section 91(14) order. The issue will need to be considered afresh as part of the court’s welfare determination.

Order

Application being dismissed at the Fact Finding Stage) [2012] EWCA Civ 1489, where the Court of Appeal dismissed an appeal against a judge’s decision reached after an abbreviated hearing of the evidence. The former President observed: “14. … It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as Judge Cliffe did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence. 15. The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercises of his discretion so to decide and to determine that the proceedings should go no further. … 18. It is pre-eminently a matter for the trial judge in a case of this sort to determine the form of procedure which will best meet the welfare needs of the children. A judge is not obliged, merely because one parent or the other wishes him to do so, to listen to evidence if it has become apparent to him that the process is not going to be of any advantage to the children. That was the view Judge Cliffe took. It was a robust view, but it is quite impossible, in my judgment, to assert that the judge, in taking that view and adopting that approach, exceeded the generous ambit of discretion which the law conferred upon him as the trial judge.”