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His Honour Judge Milligan - Southampton County Court - 28 July 2004

JUDGE MILLIGAN: This hearing has concerned two applications by the mother of E born in December 1997, and now, therefore, six and a half years old. He is going to be seven just after Christmas. The application is firstly, for a residence order and secondly, for leave to remove or, more accurately, keep E out of the jurisdiction. The respondent to these applications being E's father, Mr. Kip sic Miller.

The brief factual background is that these proceedings have been ongoing since 1998. They began with an application by this father for contact with E. Contact was ordered by the District Judge. The District Judge's order was appealed to me but upheld. Contact at that time was not taken up by this father, broadly on the basis that he did not believe that his rights, or his importance, as E's father were being recognised or proper regard was being paid to them. Accordingly, for reasons I have never been able to understand, he thought it best, in E's interests, that there be no contact at all. It seemed to me, as it seems to me now, that he was confusing preoccupation with his rights as a father with the need for his son is to have an ongoing relationship with his father.

As he puts it, the father has consistently opposed court orders which do not treat the father in the eyes of the child with parity of esteem. What he has been seeking throughout, as I understand it, is some sufficient equality of care and input to E's life so that E should see that his father is every bit as important as his mother. But plainly, of course, in general terms there can be no doubt that to all children both parents are extremely and broadly of equal importance, even if their contribution and input specifically to a child's life may be of a different nature.

But, as I have said, this father, on the basis that he considered that his role as E's father was not receiving sufficient recognition, decided that the best for E was that he should not see his father at all.

Subsequently, following further hearings, it became appropriate in my judgment that an order should be made formally putting an end to the contact, that this father was not taking up and because there had been a high number of applications of a, in my judgment, harassing and persistent nature, it became necessary for orders to be made under section 91(14).

In May of last year father applied for leave to apply for a contact order. He then sought to defer that application, to which I consented, on the basis that he should apply to reinstate it by the 31 August. It is his case that he applied before then. So far as these applications, however, are concerned, he gave his consent in writing to E going to New Zealand with his mother for a period of four months, between December 2003, and April of this year. He says in evidence, on the one hand, that he knows from his position as a geography teacher that New Zealand is a country having much to offer the visitor so that in that sense he was supportive of what was proposed. But he also says that in his mind he signed it, giving his consent, on the basis that he would have contact with E before the child went. He said: "I thought agreeing to that would sweeten my contact."

Whatever may have been his motives it has not been suggested that they were shared with this mother who, in my judgment, was perfectly entitled to accept at face value father's written consent for her leaving the country with E for the period to which I have referred.

I do not think, and have never thought, that this was a case of wrongful removal, notwithstanding that in the events as they turned out, this mother went earlier than anticipated. Father says this was done to frustrate a contact hearing. I have not heard anything that supports that suggestion.

Notwithstanding the consent that he had given the father then sought, through the police, to have the child treated as though he had been abducted.

Again, as the events have turned out, E has remained in New Zealand and is still there at the present time. Of course it follows from what I have said that father's consent to his remaining there ran out in April of this year.

Mother asks leave that E be allowed to stay out of the jurisdiction in the following way. Firstly, she says that it will be in his interests, from a medical point of view. She has put before this court a great deal of information as to professional involvement in E's life since his arrival in New Zealand. There have been, she concedes, behavioural problems. She says that the early diagnosis was of subtle development and learning delays and possibly dyslexia. She gives information as to their investigation with references to a number of appropriate medical teams, paediatricians, neuro-developmental therapists, child and mental health services, and psychiatric assessment. It is her case that a diagnosis of dyslexia has now been made; that generally speaking the New Zealand professionals have been able to identify the nature of E's difficulties; that as a result of the diagnosis, and the help, and support, that has been given, E is now very much more settled than she accepts was the case when they first arrived. He is doing well at school as his report shows. She says he is happy and settled in class. She says that he has made a number of friends, particularly two children who live next-door. She says his paternal grandparents, to whom he is very close, make visits. They stayed with them for just over two months at the beginning of the year. Further visits are planned. His paternal uncle has been making annual trips for the past six years and is anticipated at the end of this year. So she makes the point that remaining in New Zealand will not prevent E having some contact with his mother's extended family.

She speaks of the activities in which E is involved; that he is entitled to free schooling, free hospital treatment, and access to health care. There is a dentist attached to the school for monthly checks. He walks five kilometres to school. He swims. He is playing tennis and there is soccer coaching. He is having swimming lessons. There are fitness aerobic sessions, such as all children, she says, have every morning at school.

So that it is her case that E has exhibited some behavioural problems since his arrival and she accepts that one element of that may be that he is not seeing his father, but given that he has not done so for such a long time, and that he was so young when lie last did, it may be that he has no great recollection of who his father is. But she concedes that the lack, as it were, of a father figure may be a factor, but she points to the professional diagnosis and the course of treatment that has been embarked upon. It is part other case that it would not be in E's interests for these sophisticated arrangements designed for his health and support to be disrupted.

The documents that I have seen by way of medical reports exhibited to her statement categorise his behaviour problems as including lashing out, becoming very angry, ready to throw objects, inability to reason, appearing to be in a different world, safety issues, running out of the classroom, and kicking and pushing other children.

The neuro-developmental therapist concludes — and this is a report dated March of this year:
"In the light of emotional behaviour and the family history factors E may well benefit from referral to child and family mental health services. This has been done."

She also recommends his learning progress be closely monitored. This also has been done.

The child developmental team speak of the fact that his behaviour problems can become very aggressive, especially if he does not get his own way. This has lasted at least six months including attention seeking in public. Mother has tried behaviour modification but that has been difficult to enforce due to his aggression.

The visiting paediatrician doctor has this view: "I personally think that his social circumstances have played a big part in his behaviour. According to the mother his dad has tried in many court battles to get 50/50 custody of him in the UK and as soon as one court case is finished there will be another. Although he does not have contact with his dad in the last few years I am sure he has been exposed to discussion about mum and dad's relationship. I also think that he picks up on mum's stress about all the court cases. I think as a last resort his mum has decided to return to New Zealand where she was born. I think she is able to provide her son with a more stable, stress free life. I do realise that relocation to a new country can sometimes be very upsetting for a child and this can also contribute to his behavioural problems initially. The fact that he is in year two and might struggle a bit with learning can also put more pressure on him. His next problem is that of learning difficulties, struggling with his reading, and writing. His mother says he really struggles to remember words, although his memory of other things like events are very good."

Plainly, as Mr. Miller has said, and as I recognise, there is a certain amount of supposition in the opinion-expressed in that paragraph, based, as it is, upon what has passed, quite properly of course, between mother and the professional paediatrician on the child's behalf.

I think it likely that the doctor's reference to the fact of the relocation giving rise to some settling in difficulties, is likely to be correct.

Dr. Nellins said: "I do realise things like oppositional defiant disorder and other conditions must come to mind. I think it is a bit early to consider that. I would appreciate a second opinion from the CAP team. As to his learning difficulties, and possible dyslexia, he might need some extra classes for input at school."

As I have said, the school report that he has been identified as making pleasing progress in his first year. He is to have the help of a specially trained teacher, and for eight weeks he will be withdrawn from the classroom to work in a small group for thirty minutes -each day from Monday to Thursday. The date of that report is April 2004.

The school also say he has settled in well to class and school routines. He joins in willingly with all class activities. He concentrates closely and is keen to do his best. He is responding well to praise, and mixes quietly with other children in the class, is beginning to establish friendships and has excellent attendance and punctuality. Homework is completed regularly. He enjoys the company of other children. He has formed friendships with some of the boys. He can work independently, or with teacher guidance, although he still finds it difficult to co-operate in group situations. He needs to focus carefully on classroom routines and boundaries. He must take a more serious approach towards authority if he is to benefit from the school's behaviour management incentives and awards.

I indicate straightaway that I find that that part of the mother's case that is based upon the diagnosis and treatment of E's developmental and behavioural problems is made out as it is fully supported by the professional information that has been put before me. She makes the further point, as is supported in the literature, that there can be no quick fix to problems of this nature. She tells me that resources such as those that I have mentioned will be available to E until the age of fourteen.

The mother's own position is that she has no family now in New Zealand. She had, when the application was made, no intention, she says, to emigrate. She is a New Zealand citizen and a registered teacher there.

The other part of her case is this. As she puts it, in some six years there has rarely been a time when a hearing was not taking place, or pending, whether in this court, or in the Court of Appeal, and whether concerning E directly or the question of the publishing by this father of information concerning private Children Act proceedings in the public domain.

Staying in New Zealand, she says, will give some closure to these problems. She says that they have caused her very considerable anxiety. She points out that father refused contact for many years, so that to that extent he has not been denied by E's absence. She said:
"If he will go on pursuing this litigation it is best for both of us that we stay out of the country. I am in an anxiety state. I am taking sedatives. This is the product of the endless litigation, and fear, and anxiety, as to what father will publish on the internet. I want," she says, "to be well away from it. It is affecting us bo E has a life out there. I am no longer supportive of contact. I think he is a dangerous person. He continually undermines me as a mother. I have never received any support. I think he is a destructive force in E's life."

I should say, before I pass on, that mother's further anxiety is that if she were to return to this country she would face long waiting lists before similar professional provision could be made to meet E's problems, as I have said, her case being that it is not in his interests to be taken from the sophisticated arrangements she says that are presently being made for him.

She further says that she is advised that another major change would not be in his interests by which she means a further relocation. Although her case was that she wished to stay out until September of next year, when it would be time for junior school, if E was in his country, she now wishes her application for leave to be open ended.

As to her application for a residence order she says this reflects the realities. She said:
"E has always lived with me. He has done for the entirety of his life. In the events, as they have turned out, he has not seen his father for some considerable time."

She denies leaving this country to prevent contact between father and son. I mention that last because father's case is that that is precisely what she has done.

He proposes that E's behaviour problems are due to the absence of contact with his father, or at least a father figure, as he has always maintained. He says that this mother deliberately left to frustrate contact. She knew, he said, that he was applying. If the welfare of the child is paramount then E's interests lie in contact being reinstated and the child returning to this country for that purpose.

This mother, he says, has been keeping the New Zealand professions blind to the fact, as he puts it, that she has been acting from start to finish to frustrate the father/son relationship. In my judgment these are the salient features of the applications before me. This father has by his own actions withheld from E the chance of a father/son relationship developing. I agree with Mr. Miller that on all ordinary criteria children need relationship with both of their parents, particularly when their parents have separated. In general terms, and upon general principles, it would plainly be in E's interests to have an ongoing relationship with his father.

Sadly, it is this father, firstly by not seeking to take up contact ordered, and, secondly, thereafter having to be ordered not to do it, that has meant that if E is suffering from a lack of a relationship with his father, then this cannot be said to be the mother's fault and it has to be recognised that it is the direct result of the father's approach to these matters. That has always been, it seems to me, contradictory in that, on the one hand, he says E needs a relationship with his father – a proposition with which nobody would disagree - but on the other hand he says:
"Because my status, my importance, as a father is not being given proper recognition by the courts the appropriate response is for me to simply withhold myself from him."

I mention all this because the present position is that E has not seen his father for a very long time. Not, I think, since he was a baby. It follows that he will have little, if any, recollection of him. It follows from that that if this father is to make the sort of input that he wishes to make, reintroduction would have to be carefully handled, no doubt with proper professional input.

The father's opposition to the question of a residence order is plainly unrealistic. What other view could the court take? E has lived with his mother since bir His father is no doubt a stranger to him. Mother has been responsible for all E's day-to-day care and general up-bringing. The father has chosen not to participate. The suggestion that a residence order in favour of any parent but the mother is plainly unrealistic. The making of a residence order in the mother's favour simply reflects the realities of the case when seen from E's point of view. She is the parent with whom he has always lived, who has brought him up, and to whom he relates.

What of the application to stay in New Zealand? As I have said, I do not believe that this mother was at any time motivated by a desire to keep the child away from his father. If that had been her interest she did not have to do anything about it because the father has done it for her.

I think there is much force in her case that E plainly was unsettled by the move to New Zealand; that learning and psychological difficulties have been identified; that appropriate and widespread professional help has been secured; that E is responding well to these efforts being made on his behalf as evidenced by the settled life he is living and the positive nature of the school report.

I agree with this mother that it would be quite inappropriately disruptive for all of this good work to be thrown away by requiring E's immediate return to this country.

At this age the help he receives from his particular problems and difficulties will be crucial in my judgment to his longer term development. All of this is in place and it would plainly not be in his interests for it to be disrupted.

I am satisfied on this mother's evidence that he is receiving all appropriate care and support in New Zealand and indeed the leading the happy, settled, and productive life for which the mother contends.

The more difficult aspect of this case is this. This mother applied on the basis of a limited residence in New Zealand, but has now at this hearing sought to broaden it to an open ended arrangement. She says, quite openly, that the effect of-some six years of litigation has been deleterious. She has suffered because of it. Medical assistance and support has been necessary. The undermining other health and well-being necessarily has or may have had some impact upon E. I have to say that I understand that. I consider this argument to be well founded.

She has had, in my judgment, to wrestle constantly with litigation at the suit of the father who sees matters, not in terms of what might be best for E, -save for the limited point that a father/son relationship is important, but looks at it not, sadly, from E's point of view, but from the point of view of his own status, position, standing, rights, as E's father. The tragedy is that he is not able to see that E's rights, E's interests, are more important than what he regards as recognition of his status.

But the application that he came to meet was not that E should stay permanently out of the jurisdiction. This mother has my full understanding when she says that there has been nothing but court cases and hearings over a six year period. In-between times this father bombards - that is no exaggeration - this court with correspondence and documents. It seems that there is little in his life beyond the pursuit of litigation. It seems that his identity of self is found in his, what I dare say he might call ‘crusading litigation’. There is his membership of various bodies and his production of pamphlets. He speaks of "parental alienation syndrome". He speaks, quite rightly, of the serious effect that can be observed on a child by being kept away from one or other of the child's parents.

I find that this mother has never been motivated by any such desire. I find that she feels bombarded by constant litigation. I understand entirely her case that she would wish to be rid of it. I understand entirely her case that she would like to stay in New Zealand so that she and E would be rid of it. But I -cannot, firstly, because that was not her first application, and, secondly, because I must look at these things from E's point of view and at this time countenance open ended leave.

The order that I am going to make is going to give leave for E to stay out of the jurisdiction until August of next year. I am going to give this mother liberty to apply. What I anticipate she will do is to make that application in the spring or early summer, with appropriate supporting evidence. Notice, of course, must be given to this father. I will say that he should have an opportunity to respond in writing, and any way that he wishes, as to his position at that time.

MR, MILLER: Thank you, your Honour.

JUDGE MILLIGAN: It seems to me that I should then review the matter again as to whether leave should be given for E to stay out of the jurisdiction in the longer term.

MR. MILLER: Thank you. I am overwhelmed, your Honour. Thank you very much indeed.

JUDGE MILLIGAN: I make this further point so that this mother shall understand the reasons why I reached this conclusion. Generally speaking, where an application is made to take a child out of the jurisdiction it is made on the basis that full arrangements have been made, and are in place, that the mother has some reason for the relocation; that a refusal of such an application would resound to the child's disadvantage in terms of the effect on the child and either or both parents. But this case is somewhat different. The mother went for a short visit. She has elected to stay. I understand the effect of all this litigation upon her will have been serious but as things stand today, it seems that E has had problems from the relocation, possibly from the lack of a father figure, although I think this will not be in his conscious mind, or because the poor child is dyslexic. These problems are being addressed. That must be right. It would be wrong to disrupt him in the short term. But if it is the mother's intention to stay out of this country in the longer term then an application will have to be made with a great deal more information about where E lives, where he goes to school, what the daily pattern of his life is, and the reasons for proposing that it is in his interest to stay. This is information that is routinely given in support of applications to remain permanently out of the jurisdiction.

So accordingly this is the order that I make. Upon hearing the mother applicant and the father respondent in person it is ordered one, that there be a residence order-concerning the child, E born in 1997, in favour of the mother applicant.

Secondly, that the mother applicant be at leave to keep the child, E, out of the jurisdiction of England and Wales for a period ending on the 31st August 2005, with liberty to the mother to apply for further leave if required.

So that you both understand what is in my mind in making that order if - because you decide - or if you were to be coming back to this country - he would need to be in school a few days later.


JUDGE MILLIGAN: Therefore, he would need to be back in this country by August. That is why I make that order. If there is to be an application for a further extended period, or for an open ended period, it is going to need to be made in good time because I am going to need to be hearing it realistically in July or August at the latest. You know how long these things take. It will have to be an application with the usual information and Mr. Miller would have to be served with it. The injunction restraining him from putting Children Act confidential material in the public domain remains in force.

So no order for costs. Are there any further applications?

MR. MILLER: Can we have the judgment handed down please, your Honour, at public expense? Please? It is such an important thing. It is not as though I have put them on the web or anything like that. None of your judgments are on the web, your Honour.

JUDGE MILLIGAN: Yes, Mr. Miller, plainly you are entitled to a copy of the judgment. I have to hesitate because transcripts prepared at the Court Service expense simply absorb, I am afraid, scarce resources.

MR. MILLER: Yes, I understand.

JUDGE MILLIGAN: Generally speaking what happens is that one party or the other is legally aided and a transcript is obtained by means of the legal aid certificate.

MR. MILLER: It was a pretty long and complicated judgment and both the mother and myself need a copy.

MOTHER: You should have written it down.

JUDGE MILLIGAN: I probably went too fast for that, did I not? Did you get it all down? Can you type?

MR. MILLER: She was joking, your Honour. She was joking.

JUDGE MILLIGAN: I am looking for economic ways of doing this.

MR. MILLER: I know. I get on really well with the office downstairs.

JUDGE MILLIGAN: He is plainly entitled to - so would you be, (mother) - to have a copy of the judgment. It is only a question of----

MOTHER: Why can Mr. Miller not pay for it?


MR. MILLER: Yes, I am broke basically. I have not got a job.

MOTHER: Are you unemployed again?


JUDGE MILLIGAN: Because, sadly, he does not spend his time in gainful employment. He spends it in rushing around to various organisations that he thinks have the same views as he has.

MR. MILLER: What makes you think that, your Honour? What makes you think that? You have not seen me at anything, your Honour.

JUDGE MILLIGAN: You make no secret of it, Mr. Miller. Yes, I do not see any alternative.

MR. MILLER: Thank you very much, your Honour.

JUDGE MILLIGAN: I am going to say leave to both parties to obtain a transcript of the judgment at public expense.

MR. MILLER: Thank you very much, your Honour. That includes you (mother).

MOTHER: Do I have to do anything?

MR. MILLER: No, what I was going to say to the court - - - -

JUDGE MILLIGAN: What is the procedure about this?

MR. MILLER: I will go and have a word with them.

JUDGE MILLIGAN: I think we can switch off. We have determined the hearing.