B e f o r e :
THE HONOURABLE MR JUSTICE MCKENDRICK SITTING IN PUBLIC ____________________
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Mr Frank Feehan KC (instructed by Irwin Mitchell LLP) for the Appellant Ms Francesca Wiley KC (instructed by AFP Bloom LLP) for the Respondent Hearing date: 30 October 2025 ____________________
HTML VERSION OF JUDGMENT APPROVED ____________________
Crown Copyright ©
McKendrick J :
Introduction
This is my judgment on the appeal against findings of fact made by District Judge Bridson (hereafter "the Judge") following a contested trial in private law proceedings before the Family Court sitting at Northampton. By way of a written application dated 23 September 2025 (sealed on 24 September 2025) the Applicant mother seeks permission to appeal the decision to make the findings of fact. She challenges all of the findings made. The Respondent father resists the appeal.
HHJ McCabe considered the application and made case management directions on the papers on 26 September 2025. She listed the application for permission to appeal and the appeal to follow, if permission were granted, before me on 30 October 2025 with a time estimate of two days. No reasons were provided within the order. As a Designated Family Judge she was entitled to list the appeal before a judge of the High Court (given it is an appeal from a District Judge) if she considered the appeal would raise an important point of principle or practice. The Applicant had sought for the matter to be listed before a High Court Judge if permission were granted. The Respondent appeared to take issue with the listing directions and asked for the application for permission to appeal be considered in the usual way by a Circuit Judge sitting in the Family Court and for the application for permission to appeal to be dismissed after consideration on the papers and without a hearing. No formal application was made to pursue this point and the allocation and listing were not re-considered.
At the appeal hearing Mr Feehan KC set out the appeal for the Applicant. Ms Wiley KC responded, resisting the appeal, on behalf of the Respondent. Both had filed lengthy skeleton arguments and various schedules. Although the three children were not parties to the appeal, counsel for their Guardian attended and filed a brief position statement. As they were not parties to the appeal I did not hear submissions from their counsel. I am grateful to Mr Feehan and Ms Wiley for their concise, clear submissions. I announced my decision to the parties, which was as follows:
I reserved my reasons for dismissing the appeal. I endeavour to briefly set out below my reasons for arriving at these conclusions.
Background
Proceedings began by way of a child arrangements order application made by the Respondent on 7 August 2024. He sought a child arrangements order to spend time with his three children stating that the applicant had unilaterally ceased all contact between him and his children since Fathers' Day on 16 June 2024. The three subject children were born in 2013 and twins born in 2014. I can take the background from the Judge's clear judgment:
The Judge, in an order dated 21 January 2025, determined a five day fact finding hearing was necessary. She made a variety of directions including striking out some of the Applicant's allegations. She listed the trial for 17 June 2025 with a time estimate of five days. At paragraphs 7 and 8 of her order she noted the Applicant had made allegations of domestic abuse and therefore she found the applicant was vulnerable for the purposes of FPR Part 3A and that her participation was likely to be affected. She set out detailed participation directions which she directed must be provided by the court office to both security and the usher. She made four participation directions which were: a. separate entrances to, and waiting areas in, the court building; b. measures to prevent the Respondent from seeing the Applicant within the court building or its precincts; c. measures to ensure security took steps to prevent the parties meeting unless in the hearing; and d. measures to permit the Applicant to participate in court from behind a screen.
Leading counsel before me were trial counsel. At the trial, Mr Feehan's appeal skeleton argument states the following took place:
The Findings of Fact
As is required by the FPR the findings of fact made by the Judge are set out in her order dated 2 September 2025, as follows:
The findings of fact are supported by a comprehensive and coherent judgment of 138 paragraphs. It is not necessary to set out detailed passage of the judgment (with a few exceptions to which I will return below). It sets out: the jurisdiction; the background; the case for the parties; the evidence (written and oral); a summary of the closing submissions; the applicable legal principles and 51 paragraphs of analysis and discussion. It deals with some of the procedural matters which give rise to the Applicant's first ground of appeal. Paragraph three of the judgment states inter alia :
Grounds of Appeal
The applicant has six grounds of appeal against the fact finding of the Judge. These are:
Ground 1
The judge failed to ensure that the appellant was treated as a vulnerable witness in that she failed to ensure that counsel for the father in cross-examination of her used the techniques set out in the relevant Advocates' Toolkits as required by FPR 2010 PD3AA para 5.7.
Ground 2
The judgment of the court contained numerous material errors of fact which the court failed to correct or, having corrected them, failed to reconsider as to their effect on its analysis or conclusions. These errors of fact render the ultimate judgment unreliable.
Ground 3
The judge's conclusion that the mother had attempted to manipulate evidence of the children's medical records was contradictory and plainly wrong; such conclusion then led the judge to place too great a weight on her false conclusion that the mother sought to put manufactured evidence before the court.
Ground 4
The judge failed to give any or any adequate reasons for her conclusions that the mother had colluded with her own mother and other witnesses so as to (i) present a false picture of the father as the perpetrator of domestic abuse; and (iii) in order to influence the children away from their father and obstruct contact between the children and their father.
Ground 5
The judge failed to undertake a holistic analysis of the evidence and inappropriately confined herself to matters set out in the old scott schedules despite it being agreed by both parties at the outset and apparently accepted by the judge that such a course would be inadequate.
Ground 6
The judge was wrong to find that the mother had acted in such a way as to obstruct the children's contact with their father in that she failed to deal at all with the evidence of independent third parties and the children that she had tried to promote contact and failed to deal at all with the mother's submission as to the father's conduct towards the children at contact and his admitted conduct in the home.
Analysis
Family Proceedings Rule 30.12 (3) states:
Ground 1
To add to the background to this ground of appeal, I have the transcript of the Judge's reasons for refusing permission to appeal on 2 September 2025. She said this:
Mr Feehan's detailed skeleton argument makes the following main points:
At the appeal hearing he helpfully developed this submission in large measure by taking me through the written transcript of the evidence. He accepted, in answer to a question from me, that it was not necessary for me to hear the tape recording of the evidence and that his appeal could be advanced only on the basis of the written transcript. When asked what the breaches of PD 3AA amounted to, Mr Feehan was clear it was only his submission that the cross-examination of the Applicant did not comply with the Advocates' Toolkit.
Ms Wiley's team produced a schedule entitled "Chronology of Special Measures At Fact-Finding Hearing." Effectively this is the Respondent's answer to this ground of the appeal. It is a compelling document. Ms Wiley submits the Judge conducted an entirely fair hearing throughout and intervened as and when necessary to assist the Applicant to give her evidence. Breaks were offered. The Judge remined counsel to slow the pace of questioning. An adjournment was provided.
To resolve this ground of appeal I have had regard to the written transcript of the evidence. It is nearly 1, 000 pages. I have read some of it and time was spent at the hearing going through it whilst Mr Feehan made submissions. After the Applicant was unable to continue with her evidence on day two, the court adjourned unto day three. At the outset of the hearing on day three, the Judge met leading counsel in chambers. I set out some of the transcript of this part of the hearing as it illuminates the issues, the Applicant's complaint and the Judge's approach to them.
The hearing then resumed with the parties with an argument about privilege. The transcript shows that Ms Wiley's cross-examination of the applicant resumed on page 159 and continued until page 314. Whilst giving evidence, the Applicant had her solicitor sit beside her to assist her with the bundles. Mr Feehan occasionally asked for a document to be shown to his client which took place. He asked for a few ten minute breaks which were granted. The lunch adjournment takes place. Mr Feehan asks for a further break shortly after lunch and the Judge agrees. On an occasion Mr Feehan says: "Can we just, thinking about the Toolkit, just a breath." Ms Wiley responds that the Toolkit is being followed and the questioning continues. On occasion Mr Feehan asks for bundle references to be repeated. The witness asks to take some pain relief but states she does not want a break. The Judge agrees to her request. The transcript records that in the afternoon, the Applicant is crying and the transcript records Mr Feehan saying "please". The Judge asks this witness if she would like to step outside and have a ten minute break. She responds that she does not and states: " I just want to get this over and done with ". The Judge disagrees and rises. The Applicant had a short break. Towards the end of the cross-examination and the Applicant asks how many more questions there will be. Ms Wiley responds: " not too many ". The Judge asks if the Applicant is alright to carry on. She states she would prefer to " Finish today and not drag it on ". The Judge states: " Again, I am keener to have you given the best available evidence " The Applicant is told there is fifteen to twenty minutes left and state her preference to carry on. Mr Feehan raised a point about the unfairness of the implication in a question. The questioning continues. The cross-examination ends. The judge agrees to adjourn any re-examination to the next day. The transcript records on day four, Mr Feehan had no re-examination. I add that the topics for cross-examination were personal and difficult.
I granted permission to consider the role of the Advocates' Toolkit in the context of questioning vulnerable witnesses, seen in the specific context of FPR PD Rule 3A and PD3AA. This seemed a compelling enough reason to grant permission to hear the appeal. Fairness is essential. Fairness to vulnerable parties is particularly important. Nonetheless, I can set out my conclusions with brevity. The obligations on both the court and the parties contained within FPR Rule 3A and PD3AA are clear and need no further elucidation from me. The Judge determined the Applicant was a vulnerable witness in her January 2025 order. Paragraph 5.7 of PD3AA sets out the expectation that advocates should be familiar with the techniques being employed by the Advocates' toolkit. No more; no less. Any trial judge must consider the Rules and the Practice Direction and the overall fairness of the proceedings. The Toolkit is guidance particularly aimed at advocates and litigants in person. It should normally be followed.
Turning to the particular facts of this case I am entirely persuaded this ground of appeal must be dismissed. The Judge had to deal with rather fraught parties and difficult emotional issues, given the allegations made. In January 2025, she correctly determined: (i) the need for fact finding; (ii) the Applicant's designation as vulnerable; (iii) her duty to consider FPR Rule 3A and PD 3AA; (iv) the need for participation directions. No appeal was made and no further applications were made in respect of participation directions.
At the trial, she acceded to the requests made by Mr Feehan. There was an adjournment from day two to three. There were multiple breaks. She agreed Ms Wiley should adhere to the Advocates' Toolkit. She noted the need for the pace to be slowed. She required proper referencing of documents in the bundle. She permitted the Applicant's solicitor to sit beside her to assist with the bundles. Even in circumstances where the Applicant stated she did not want a break, the Judge formed the view she would give better evidence after the assistance of a break. She permitted Mr Feehan to extensively state his case around the Toolkit in oral submissions on day two and day three. She also permitted him to file, and consider, his written submissions on the same issue. She considered them. At no stage did Mr Feehan state anything other than Ms Wiley should follow the Advocates' Toolkit's guidance. She extended the length of the trial by two days to fairly accommodate the issues which had arisen. Mr Feehan made limited interventions. Any limited intervention Mr Feehan made on day three appears to have been acceded to, as far as I can tell. The judgment deals with these issues. Consideration of the 2021 dyslexia report (provided mid-trial) took place. No proper explanation was made as to why this was produced mid-cross-examination and not dealt with as a reasonable adjustment in the context of a purported disability in January 2025 or at the outset of the trial. More fundamentally the report does not suggest reasonable adjustments and/or participation directions, other than those the Judge had implemented and continued to do so.
I am satisfied the experienced Judge complied with the rules and practice directions I have identified. She ensured the Applicant's common law rights to a fair hearing were adhered to. She correctly identified that the Respondent's leading counsel should be permitted to put her client's case. That is a hallmark of our adversarial system. At no stage did she lose sight of the Applicant's vulnerabilities. The Judge, correctly, applied the common law principles whilst protecting a vulnerable party. Ground one is dismissed.
Permission to appeal was refused in respect of grounds two to six. I can take them shortly.
Ground Two
Ground two states the Judge made factual errors and failed to correct them or did correct them but did not then properly, or at all, analyse how the corrected facts impacted on her analysis and findings. I have I mind Lewison LJ's (with the agreement of Males and Snowden LJJ) approach set out in paragraph 2 of Volpi v Volpi [2022] EWCA Civ 464 ; [2022] 4 WLR 48 . The Judge circulated her draft judgment on 25 August 2025 and invited the usual suggested amendments. The Applicant's legal team filed and served a table of factual corrections which ran to eleven pages. The judge held a hearing on 2 September 2025 to deal with hand down and consequential matters. She went through the issues raised by the Applicant. She did not find any of those amendments or the overall thrust of the Applicant's post judgment case made any difference to her overall analysis or to her material findings of fact made against the Applicant. The Judge was in the unique place to carry this out. As an appellate judge having considered the skeleton arguments, the Applicant's Schedule of corrections and the Judge's judgment, I am not able to conclude that arguably these factual points could have led to a different analysis which would have led to the undermining of some or all of the findings of fact.
In the overall context of the findings made, in my judgement, the Applicant's legal team have alighted on points of inconsequential detail that do not get near to their necessary task, namely of undermining the Judge's findings of fact. For example, the Applicant's appeal submissions cling on to details of minor factual issues in respect of her witness, AB. It is submitted some of these minor facts as found by the judge were wrong and, in turn, this error must have impacted on the judge's assessment of credibility. Even if some of these details were incorrect, it was still for the Judge to assess the witness's credibility after having listened to and read her evidence in the context of all the other evidence. There is no prospect the Judge, who diligently went about her task, would have formed a different view on credibility of AB which would have led to a different assessment of her and by extension the Applicant's evidence and her other witnesses, and this, taken together or separately, would have undermined the other evidence analysed, which led the Judge to make her findings. This is not arguable. This ground of appeal must be dismissed as it has no prospect of success.
Ground Three
Ground three relates to metadata analysis and whether the Applicant had attempted to manipulate evidence in respect of the children's medical records. This issue focused on paragraph 92 of the judgment which states:
The Judge does not say the Applicant attempted to manipulate the medical records. She accepted discrepancies in respect of the medical evidence were innocuous. The Judge's wider view that the Applicant had sought to manipulate the evidence was one open to her. Reading paragraph 92 as a whole and in the context of the lengthy judgment, the Judge is not making a finding that the Applicant manipulated the medical records, but rather the evidence generally . She was entitled to form that conclusion and gave reasons for this legitimate view in paragraph 92. The Applicant's legal team have become overly focused on: (i) the dispute over the metadata analysis and the GP records; and (ii) the disproportionate litigation around these issues, that it has influenced how they read the judgment. This ground has no prospect of success and permissions is refused.
Ground Four
This is a reasons challenge to the Judge's view the Applicant colluded with other witnesses. The short answer to this is found across the judge's detailed analysis having heard the witness at paragraph 92 to 99. It is clear she gave reasons. The Applicant should be capable of understanding the reasons given by the Judge and therefore she knows why she lost on these issues. Permission is refused.
Ground Five
This ground states the Judge failed to holistically analyse the evidence and inappropriately confined herself to the Scott Schedules. This is not a promising start to the ground of appeal, given the detail and structure of the judgment. The Judge's summary of the law, which she clearly applied stated the following inter alia (my emphasis in underline):
Mr Feehan's skeleton argument acknowledges the Judge gave herself the correct directions but he submits she failed to follow her own legal principles. I am not clear what facts are said should have been found but were not. Or how this submission undermines the Judge's evaluation of the written and oral evidence, her reasoned analysis which lead her to make her findings. No proper case is put forward. This ground has no prospect of success.
Ground Six
This ground is a challenge to the fact finding made that the Applicant obstructed contact with the Respondent and that the Judge had failed to consider evidence from a therapist who had supervised contact. This relates to some reports from an Independent Social Worker. The Judge read her evidence. She was not called as a witness. The Judge, I am told, watched videos of the children and contact. The Judge had been presiding over these proceedings for a long time. She referred to this social worker's evidence at paragraphs 21-23 of the judgment. There is no reason to suppose she did not have it in mind. In any event, this finding must be seen in the context of the Judge's views on the credibility of the Applicant and her witnesses, their collusion and her other findings. Such a finding is clearly not plainly wrong and nor is there any prospect of this being established. Permission to appeal is refused.
Conclusion
The appeal must be dismissed. The Applicant received a fair hearing.
The Respondent seeks his costs of the appeal in the sum of £ 59, 451.60. He has set out his reasons for this in a submissions dated 7 November 2025 in accordance with directions I made in court at the conclusion of the appeal hearing. The Applicant's solicitor states this submission was never received by them. Should they wish to oppose liability for costs and/or make submissions on the quantum of costs they must do so in writing, limited to ten pages, by 4pm 12 December 2025 and thereafter the matter shall be summarily determined on the papers.