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His Honour Judge Milligan - Aldershot County Court - 6 December 2001

JUDGE MILLIGAN: This is the application of Mr Miller for an order for shared residence, by which I think he means joint residence, of the child E who was born in December 1997 and who is now therefore nearly four years old. This case has a sad history. There was an order by the District Judge for defined contact. Mr Miller, as he was perfectly entitled, took the view that the defined contact was too limited and appealed the matter to me. I dismissed his appeal, taking the view that the contact ordered was appropriate in all the circumstances, the child then being then - how old, Mr Burge, two?

MR BURGE: Your Honour, yes, I think.

JUDGE MILLIGAN: The child being then some two years of age.

MR MILLER: Slightly less, your Honour.

JUDGE MILLIGAN: I understand that that order was the subject of a further appeal but the Court of Appeal did not rule in Mr Miller's favour. But there was a complaint on his account, as I recall on one occasion, that the mother was withholding the feed from the boy E so that the child would come to associate the father's visits with being kept from his food. I recall regarding such a suggestion as perfect nonsense.

In the events as they have turned out, Mr Miller has not taken advantage of the contact ordered since 24 December 2000. On that occasion he tells me there was an expedition to London involving himself and E and E's mother. He tells me that that outing took place on the condition, so far as he was concerned, that he was not limited to two hours twice a week, as had been the order of the Court. He takes the view that such an order is worthless and does not allow any opportunity for him to bond with his son. I am aware that the mother does not accept that any such condition was imposed upon that visit, or if it was in the father's mind, it was certainly not accepted by her.

It is my judgment that this mother has consistently sought to support the question of contact between E and his father. There is no suggestion in my mind that she has done anything other than promote it on the basis of it being in E's best interests.

So we have a father, Mr Miller, who feels that the contact ordered has been too little, who has exhausted the appeal process, but remains of the view that the contact ordered was too little but, as far as I can see quite irrationally, takes the view that that being the case he should not take advantage of the contact ordered at all. He complains on the one hand of no proper opportunity to form a bond with his son in the context of a developing mutually beneficial relationship and on the other hand says that because the contact that was ordered was so insufficient, despite two failed appeals, as to give him no such opportunity. This is a contradictory and I have to say irrational view.

Against a background of not having seen E since December 2000, this father today applies for a shared residence order and he refers me to the Court of Appeal authority in D v D [2001] 1FLW 495, a decision which modified to some extent the previous thinking as to joint residence orders which was that in general terms unless the parents were on good, easy terms with each other and able to cooperate constructively in the children's arrangements, such an order was inappropriate. The President, as she now is, in D v D explained that such a view was too narrow, that what was required was the application, as with all children's matters, of the requirements of section 1 of the Act by which the Court should ask itself whether such an order was in the interest of the child.

Unhappily Mr Miller has plucked from the headnote to that case a reference to the argument put forward by the father that he was being treated as a second class parent by the authorities with whom he had to deal regarding the provision of information about the children. Plainly that was a reference to difficulties with such as the surgery, the school and other similar bodies, about his being given information and allowed to participate in such matters. Part of the concept of parental responsibility of course is to address such difficulties. But Mr Miller has transposed this proposition into a suggestion that he is being treated as a second class parent by the Court and that because he is being so treated, as he puts it, no parity of esteem is being given to these two parents. He argues that E's best interests are not being served.

In my judgment E's interests are not being served by a father who complains of contact being too restricted but responds by refusing to take it up at all. By way of illustration, the parties saw each other accidentally some six weeks ago. Mr Miller tells me that E's mother suggested that they had coffee together. He indicated that he did not wish to talk to them. I can see no possible motive behind such an inappropriate stance save for a consuming obsession with legal technicalities, procedures, parenting theories and literature on the subject, which has characterised Mr Miller's complete inability to focus on what might be best for E because he is utterly obsessed with the matters to which I have referred.

I join with him in expressing anxiety as to E's future development, not because I have the slightest anxiety but that his mother will give him all appropriate love, care and attention, but because he is being deprived by Mr Miller's obsessional stance of any chance of developing a relationship with his father, and that may well come to trouble him as he grows up and develops the maturity to understand these things. So that when Mr Miller complains that contact is so limited that E is not being given the opportunity to form a relationship with his father, the reverse in fact is the case: it is Mr Miller who is depriving him of that opportunity. Had he, as I suggest any responsible father would have done in the circumstances, taken up the contact defined, despite his view that it was insufficient, and used it to lay the foundations of a developing relationship between father and son, the probability is that contact by now would have been extended, either by agreement of the mother, which I think is likely, or by the Court if necessary.

Mr Miller is right when he says that the Children Act recognises that there is no reason why both parents should not be involved in the upbringing of their children. It is Mr Miller's unilateral decision that has prevented this from occurring. He is right also that Courts make no distinction between male or female parents when deciding in any individual case what arrangements can best be made for the children in question.

As to the present application, I think it inappropriate, from E's point of view, to suggest that a joint residence order with a parent he has not seen for nearly a year can possibly be in his best interests. Further, I am plain that such an order would leave the mother with some extremely-difficult, if not impossible, difficulties and complications in her day-to-day management of E's upbringing. I cannot imagine anything less calculated to be in E's interests than to permit this father to exercise joint responsibility with this mother for every aspect of E's day-to-day life and upbringing. It would be a recipe for disaster of which E would be the principal victim. If this father is serious in his wish to promote his son's best interests and to develop the sort of naturally productive father and son relationship for which he says he longs, and which if achievable would clearly be in E's interests, then his way forward is plain: he takes up the contact that has already been offered and through it he builds, as time goes by, the foundations of a real relationship which can then be looked at on an expanding basis as E grows up and as his understanding and needs change as the years go by. If this father persists in his obsession that it is his legal rights that are being obstructed, to E's disadvantage, he is merely clinging to the obsession which has bedeviled these proceedings over some two or three years now and resulted in nothing but expense and dissatisfaction, not least to the child's mother.

Accordingly, I reach the view, in E's best interest and without any difficulty at all, that this application is entirely misconceived.

What do you want to say about section 91(14), Mr Burge? Is that mother's application? (The proceedings continued)

JUDGMENT JUDGE MILLIGAN: The mother applies for orders under section 91(14) to terminate the father's parental responsibility and the contact order made in his favour. She does so on the principal ground that this father has shown no commitment to his son in the way of taking up the contact ordered and that his general course of conduct has been to do nothing in that regard but to make periodic applications which cause her, as these things inevitably do, a certain amount of anxiety and distress. Plainly such anxiety and distress on the mother's part may be communicated to E, however hard she may try to ensure that that is not the case.

When asked the straight question, the father indicates that because he considers the present contact order to be inappropriate and insufficient he has no intention of taking it up, this against the background to which I have already alluded of a father who has exhausted the appeal procedures and because he takes a different view has, in my judgment, taken it out on his son by simply refusing to see him at all.

One of these days E is going to wonder why his father played no part in his upbringing. That is likely to cause him considerable pain and distress. It may certainly single him out from his peers at school, who are ever ready, of course, to notice differences such as that, and it may cause E, as he grows up, to be so angry about his father's apparent disinterest that he may never wish to see him. Such an outcome would be extremely bad for E. These are matters that the Court must hope the father will ponder. Given his express position that he does not propose to take up the contact that has been ordered, I propose, as mother asks, to put an end to the order. The same considerations must apply so far as parental responsibility is concerned. Although E is Mr Miller's natural son, his motivation throughout these proceedings has been to justify his own view, which is quite different, and indeed hostile, to what is in E's best interest.

As to commitment, he shows great commitment to his own views and theories, but alas no parallel commitment to his son. In those circumstances, I consider it appropriate also to terminate the order for parental responsibility.

There is the further welfare aspect, that given that E has not seen his father save on 24 December 2000, to which I have already referred, since August 1999, it seems to me that any reintroduction of contact would need to be carefully and sensitively handled and would benefit from professional input.

In all those circumstances, I am going to make an order that this father make no further section 8 applications without leave of the Court. I say to him that if he comes to this Court saying that what he wishes to do is to build a relationship with his son, then this Court will welcome him with great enthusiasm, if such a position is genuinely and sincerely held. But I say to him that for so long as he is consumed with what he sees as his rights and the way in which the courts mistreat him, it is most unlikely that any application he makes under section 8 is going to be successful. I say to this father plainly that what he has to do is to put aside his obsession with being treated, as he calls it, as a second class citizen and get himself into a frame of mind where what matters to him is a developing relationship with his son for E's benefit, and plainly as a result of that for his own. If he is prepared to focus on what is good for his son, then future applications for leave and the consequent section 8 applications will receive the most sympathetic consideration. If he persists in his position that he is being unfairly treated, and therefore, like a small child whose toys have been taken away, he will have nothing to do with it and will take no steps to build a relationship with his son, then any future applications he makes are likely to be as unsuccessful as was his application today.

So I shall say upon hearing the father, applicant in person, and the solicitors for the respondent mother it is ordered:
(1) That the father's application for a joint residence order is dismissed;
(2) That upon the application of the respondent mother, the orders for parental responsibility and contact herein do stand dismissed and that by virtue of section 91(14) of the Children Act 1989 there be no further applications under that Act without leave of the Court, reserved to me.

What is the position as to costs, Mr Burge?

MR BURGE: Before I address you in relation to costs, I have two observations. Firstly, I do not whether your Honour intended to put a duration on the section 91(14) order or not. It is a matter for your Honour.

JUDGE MILLIGAN: What do the authorities say? I think there should be some time.

MR BURGE: I think there should be in fact. Two years was the previous order.

JUDGE MILLIGAN: (To his Clerk) Could you add for a period of two years.

MR BURGE: The second point concerns an application which Mr Miller made under section 38 of the Children Act. I take it it is completely misconceived, with the greatest respect to him, because -——

JUDGE MILLIGAN: What is that application?

MR BURGE: It is in his letter to the Court, your Honour. I have a copy of it here, if it is not immediately to hand. Your Honour will recall section 38 in fact concerns only cases in which the Court is contemplating making a care order in relation to the child, which is why I say it is completely misconceived.

JUDGE MILLIGAN: Yes, it is. What do you say about that, Mr Miller?

MR MILLER: It is completely misconceived, your Honour.

JUDGE MILLIGAN: Very well. Next paragraph: Father's application under section 38 is dismissed upon his acceptance that it is completely misconceived. What is the position as to costs, do you say, Mr Burge?

MR BURGE: Mother is publicly funded. I simply ask for the usual order, detailed assessment.

JUDGE MILLIGAN: Mr Miller, it seems you are not being asked to pay any costs for this application, which strikes me as a concession. I am not sure I see why the taxpayer should pay for it. Do you?

MR MILLER: I do, your Honour, and I feel as though your judgment has reinforced my request to have the decision handed down because I think it is a ground breaking decision to take away | parental responsibility, your Honour.

JUDGE MILLIGAN: You know about your rights of appeal, Mr Miller.

MR MILLER: Well, you were asking me about costs and so I was saying to your Honour that it is in the public interest to hear your reasons for taking away my parental responsibility or the child's right to know his father.

JUDGE MILLIGAN: It is a narrow issue as to that, Mr Miller.

MR MILLER: I beg your pardon, your Honour?

JUDGE MILLIGAN: It is a narrow issue as to that, Mr Miller. You have brought an application that has failed. The mother has brought applications which have succeeded. In those circumstances the general rule would be that the costs would follow the event, in other words, you would have to pay them. What do you want to say about that?

MR MILLER: I would say I disagree with that entirely, your Honour. I think it was brought according - as the correspondence shows, no regard for the actual law - as the correspondence with Mr Seeley shows, clearly demonstrates, I was unaware of any law.

JUDGE MILLIGAN: What is the figure, Mr Burge?

MR MILLER: It is the principle involved, your Honour.

MR BURGE: Your Honour, I have not prepared an estimate because as I understand it Mr Miller is unemployed and frankly the costs of enforcing any order against him would make it --—-

JUDGE MILLIGAN: Is that right, Mr Miller? Are you without means?

MR MILLER: No, I paid £300. I pay 30 per cent of my income to the CSA, in fact, your Honour. I live with my mother and ----

JUDGE MILLIGAN: Have you got any income?

MR MILLER: -- I work three days a week as well. That is at the
present moment, your Honour.

JUDGE MILLIGAN: Next paragraph: No order for costs, save public funding assessment of the mother respondent's costs. I am not going to order you to pay costs.

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

JUDGE MILLIGAN: Mr Miller, have I got through to you?

MR MILLER: You have, your Honour, you have - well, may I ask permission to appeal, please, your Honour? Is this the time to do it?

JUDGE MILLIGAN: Next paragraph: Leave to appeal is refused.

MR MILLER: Can I ask you for the judgment to be handed down as you have in fact withdrawn my parental responsibility order and I think it is in the public interest to know the reasons for that, your Honour?

JUDGE MILLIGAN: The reason is very plain, because you say you are not going to take advantage of any of the orders made.

MR MILLER: Right, therefore I think it is right that the public should be aware of that and I think it is in the public interest to know that, your Honour.

JUDGE MILLIGAN: As long as it is not done outside my house, Mr Miller, that is reasonable.

MR MILLER: Yes, your Honour.

JUDGE MILLIGAN: Mr Miller, can we get this down to essentials. What I would like you to do ———

MR MILLER: I understand you.

JUDGE MILLIGAN: Is to go away ————

MR MILLER: Yes, I understand.

JUDGE MILLIGAN: - and ask yourself whether you are doing E any favours by refusing to see him.

MR MILLER: I understand, your Honour, you have made that very clear. You have made that very clear.

JUDGE MILLIGAN: And the risk as to what he may think about you if he grows up thinking he has a dad who does not care about him.

MR MILLER: I understand. Do you mind handing down that decision, that judgment?

JUDGE MILLIGAN: If you come back to me with an application to reopen all this on the basis that you want to put E first, and even if you think the contact is too little, you want to make a start on it and see if you can build on it, then I assure you, you will receive the most sympathetic consideration.

MR MILLER: I understand, you have been sympathetic, your Honour.

JUDGE MILLIGAN: For E's sake I am asking you to give this some serious thought.

MR MILLER: I understand.


MR MILLER: Is it handed down, your Honour, the judgment?

JUDGE MILLIGAN: What is the position about transcripts? I never know.

MR MILLER: I think you can give me permission, your Honour, you can do it.

JUDGE MILLIGAN: Very well, let us put another paragraph. The costs one should be last. The pre-penultimate is leave to appeal refused and then the ultimate is: leave to the father applicant to obtain a transcript of today's judgments (plural).

MR MILLER: May I thank you again, your Honour. Is it right, your Honour, you appear in Northern Ireland as well? Do you sit in Northern Ireland as well?

JUDGE MILLIGAN: No, what gave you that idea?
MR MILLER: Someone at the court office told me I might have my hearing in Northern Ireland. Aldershot is bad enough - no offence. Thank you, your Honour, and thank you down there, usher.