drop-down menu

His Honour Judge Milligan - Southampton County Court - 7 April 1999

JUDGE MILLIGAN: This is the father's appeal against the order of District Judge Naylor of 3 December of last year directing that there should be contact between E, who was born in December 1997 and who is now, therefore, 16 months old, the child of these parties, such contacts to take place on Sundays between ten and twelve and Thursdays between ten and twelve. Mr Miller, the father, appeals against that order on the basis of the frequency of contact which it provides and the duration of each of the two visits.

It is his case on this appeal that the District Judge wrongly exercised his discretion in two regards. Firstly, he used the wrong procedures in deriving guidance from unofficial guidelines called A Child's Contact with a Non-Residential parent which is based on the theory of maternal deprivation which he says has been discredited. So far as this first point is concerned, that the District Judge derived guidance from this document which caused him wrongly to exercise his discretion, it appeared on cross-examination that so far as the hearing on 3 December was concerned Mr Miller did not see any such document, did not see the District Judge refer to any such document. He described these guidelines as artificially depressing the contact ordered but his case is that it is clear the District Judge was guided by them because of his decision as to the frequency and duration of contact against which Mr Miller today appeals. As further evidence of that he says that the District Judge referred to the age of the child.

So far as this aspect to the appeal is concerned, I see no substance in it. True it is that Mr Miller has put before the court a compendious bundle of material relating to this whole question of the contact between a child and a parent with whom it no longer lives but perhaps it is right that I should remind him that the courts approach these questions on the basis that generally speaking such contact is for the benefit of the child and that it should only be withheld where there are cogent or compelling reasons to that effect so that the approach always is that such contact should be sustained, that such contact is in the interests of the child and that, as I have said, there should only be no contact where there are cogent and compelling reasons to that point of view.

I cannot reach a conclusion that the District Judge was wrongly guided by any written material in circumstances where Mr Miller is unable to say that he saw the District Judge refer to any material and it seems to me that his complaint generally is this, that courts do not generally speaking order sufficient contact of very young children with the non-residential parent and that that being the case, the amount of contact between him and young E should be increased. He accepts that the present contact is typical of cases with a child of this age. He knows that from reading the guidelines but says that because courts make these orders, that does not make them right. The father is entitled to a fair share of seeing his son. The child needs to see his father especially when young. It is not possible that the District Judge made his decision on the material before him in the present case. He says that from nearly 20 years' experience as a professional teacher and 17 years of working in that capacity. There are a number of threads here.

As I have indicated, the appeal cannot succeed on the basis that the District Judge was wrongly guided by material that Mr Miller concedes was not before him and has no means of saying or knowing that the District Judge was even familiar with. The District Judge in question is an experienced family judge. I have little doubt that he is familiar with the great amount of literature and research that is available as to where the best interests of children lie with separated parents and I have little doubt that he would have been aware of and indeed derived the guidance he thought appropriate from any such material, but I say again that his duty was to decide the case on the evidence before him. Mr Miller concedes that the order made is, as it was said, typical of cases with children of this age and effectively says to me that these orders are inappropriate. They are too little and too seldom and that in the present case I should allow the appeal and greatly increase the contact. So as to the first ground of appeal that the District Judge was wrongly guided by material I make this finding. Firstly, there is no evidence that he was guided by the material to which Mr Miller refers or indeed, secondly, that if he was guided by any written material he failed to exercise his discretion in the circumstances of the case in question.

I should say in passing that the suggestion that Mr Miller makes that 20 years as a qualified teacher and 17 years working in that capacity would make him a better judge of where the best interests of young children lie as compared with an experienced Family District Judge of this group strikes me as absolute nonsense.

The second ground of appeal is essentially this, that the contact order on 3 December is insufficient both in terms of frequency and duration. Mr Miller opened his appeal on the basis that the appropriate contact would be three sessions per week, two of six hours, one of three hours and one overnight stay, moving towards shared care. So far as the latter is concerned, I should say to him that shared care orders are not often made but there is much research suggesting that they can be very successful. The essential ingredient, if such an order is to be made and has any chance of success, is 'that the parents should be on very good terms with each other and that both of them believe it to be the best arrangement and both of them are prepared to work to that end. It seems to me unlikely, to put it no higher, that any such agreement could possibly exist between the parents in the present case

Giving evidence, the father did not repeat his opening suggestion that I have just referred to but simply said that the contact was insufficient in duration and length but did not feel able to say what he thought was appropriate. The decision made was a mistake, he said, and unjust. As I have already indicated, much of his thinking revolves around the suggestion that although courts frequently make orders of this kind they are erring in so doing and that generally speaking contact should be much more frequent and of much greater duration between children of this age and a non-residential parent. The mother has anxieties about that. "He still brings E home wet and cold without his nappy having been changed. He seems ignorant of his needs or he ignores my concerns. I accept he loves his son and has parental responsibilities for him. I have never been hostile to contact. I worry about E and want to protect him. Additionally, the father brings him back late after contact visits, so much so that I have had to instruct my solicitors to write to him on 30 March saying that this had occurred consecutively on the last eight contact visits". So she considers the father unreliable in time-keeping, is not aware of the needs of a child of this young age, raises questions such as his disinclination to use a car seat and puts it generally that he has little relevant caring experience. still breast-feeding. He comes to mother when he wants feeding on average every four hours.
"I would be very unhappy", she said, "at extending the present contact due to his age, the fact that he is still breast-feeding and the fact that the father has no apparent skills with a 16 month old child".
The brief history of the contact ordered in this case is that on 19 March last year contact was ordered to take place on Sundays and Wednesdays, Sundays between eleven and twelve but Wednesdays between six and seven. On 11 August the Sunday visit was extended to ten to twelve. By the order appealed against, the Wednesday visit was changed to Thursday but made for two hours in the same way as the Sunday visit so one sees that there has been a steady progression in terms of contact ordered. It is the father's case that the 3 December order was too little and too infrequent. That contact of this nature and duration is frequently ordered in cases of where there are very young children is no coincidence, not because courts are particularly minded or moved by written material when they are aware of it but that experience shows that very small children relate very heavily both physically and emotionally to their mother and in a case where a child is still breast-feeding and, therefore, takes a feed every four hours, it seems to me that it would be quite inappropriate to suggest that any individual contact visit should be of greater than two hours' duration, given that the child has to be collected and returned. I see no basis upon which the District Judge could be said wrongly to have exercised his discretion. There has been a steady increase in the question of contact. The child, as I have said, is still only 16 months old, he relates very strongly and closely to his mother and is still breast-feeding. He sleeps morning and afternoon. Accordingly, I find no basis upon which the District Judge could be said wrongly to have exercised his discretion and in that regard the appeal is dismissed. In my judgment, the contact ordered on 3 December was entirely appropriate in all the particular circumstances of this case.

Mr Burge, or the mother, makes an application under section 91(14) for an order that there be no further applications without leave for a period of twelve months. He accepts properly that such orders are used sparingly and essentially in cases where the continual making of applications could be said to amount to conduct that is close to being vexatious or frivolous or indicative, as he puts it in the present case, of a campaign by the father overlooking the interests of the child.

This is the ninth hearing. The child, he says, needs stability. Whether at 16 months the child has any great appreciation of what is going on I have some doubt, but he goes further and says that mother and child need to be able to sleep free of the stress that has been associated with the repeated making of these applications. The mother puts it this way,
"This is the ninth hearing. I feel it is always hanging over me. I have lost much sleep worrying over the cases. I saw the doctor and he said I will sleep better when things are sorted out".

In my judgment, it is a relevant matter that the constant making of applications so unsettles the mother as to give rise to the risk that such undermining and unsettling of mother is having some poor effect on the child. She says that E is having sleeping problems and then she went on to deal with the question of missing his morning sleep on the Sundays and the Thursdays when he sees his father and advancing the alternative suggestion that nine to eleven or 9.30 to 11.30 would be better all round and would accommodate his sleeping during the day pattern.

Father opposes the making of an order under section 91(14) referring again to his status and experience as a teacher saying that that gives him a view that children always come first, that they are the most important and that he considers that these applications have been made in E's best interests. I do not agree with him. The father is suffering from, in my judgment, some form of mental block over these proceedings. He has a view as to how often he should be seeing his son. He takes that view from his own point of view. I do not accept his suggestion that in that regard he sees these matters from the child's point of view. The father is entitled to a fair share of seeing his son, especially when young, and like many fathers in other cases coming before these courts he has taken a view as to what he considers to be the appropriate amount of contact and has gone through the literature seeking support for such a view and where the literature is against him he dismisses it, as he does, for instance, the guidelines that he says the District Judge relied upon but is quite unable to satisfy me to that effect.

Much harm is done where a man believes that he is acting for the best all round but he in fact is promoting his own view of the case. That, in my judgment, is what is happening here. Mr Miller has a fixed view of what ought to be happening. He is disinclined to consider any alternative view. He is certainly disinclined to consider the mother's view and feelings about this matter and he simply takes the view that contact is right, that he knows what is right in that regard, that because courts frequently makes orders in line with the current case does not make them right, and I make the point again that I make the order on what I consider to be the facts of this case, but, sadly, this is a father who has his own pre-conceptions and is, in my judgment, insistent upon seeing them come into effect and has, therefore, made repeated applications to that effect.

When he opened this appeal he proposed that contact should be increased from two hours twice a week to two six hour visits, one three hour visit and an overnight stay. Anybody with experience of working with children would say that moving from the present order to that type of order would be utterly inappropriate and how he thinks a 16 month boy would cope with six hours with his father away from his mother or indeed how he thinks he would cope with the requirements of that time he was not able to say. Mr Miller does not strike me as an insensitive man in the sense of simply wanting to impose his will but he has got it into his head that the courts are wrong, that more contact is appropriate and that he will continue to make applications until courts and all concerned come round closer to his way of thinking.

In those circumstances, I accept Mr Burge's submission that there has been something of a campaign by the father to achieve his own view of what ought to be happening and I accept the mother's evidence that this has had a thoroughly unsettling effect upon her. I find that there has already been some resultant knock-on effect upon the child, E. Accordingly, in those circumstances I think it appropriate to make the order that Mr Burge seeks.

I am going to allow the appeal to this extent that instead of ten to twelve on Sundays and Thursdays the future time would be --- Mr Miller would you prefer 9.00 to 11.00 or 9.30 to 11.30?

MR MILLER: Nine-thirty to eleven-thirty, your Honour.

JUDGE MILLIGAN: That it should be 9.30 to 11.30 to fit in with E's sleeping patterns. So the order I make is hearing the father Appellant in person and solicitors for the mother Respondent it is ordered (1) that the appeal be allowed to the extent that the contact ordered on 3 December 1998 shall take place between 9.30 and 11.30 instead of between ten and twelve; (2) in all other regards the appeal shall stand dismissed; (3) by virtue of section 91(14) of the Children Act there shall be no applications without leave for a period of twelve months from today; (4) the case shall stand reserved to me. Costs, Mr Burge?

MR BURGE: The Respondent mother is legally aided, your Honour. I ask for the usual order.

JUDGE MILLIGAN: Mr Miller, in view of the view I have taken of the nature and frequency of these applications and the section 91(14) order that I have made, it follows that I generally speaking consider that you have pursued these applications beyond what is right for E and in those circumstances the question would arise whether you ought to pay the costs of this appeal. Given that Ms C is legally aided, what do you say about that? Is it right that the public should stand the expense of this appeal that has failed? Or do you think you should be called upon to pay it?

MR MILLER: Obviously I would prefer not to pay, your Honour.

JUDGE MILLIGAN: In my judgment, you ought to pay something, Mr Miller. I think this was an inappropriate application, putting it no higher than that, and I am not persuaded that it should be entirely at the public expense. I think you should make a contribution. What figure do you propose and then I will tell you what figure I consider appropriate? What is the position? You are working part-time?

MR MILLER: That is right, your Honour.

JUDGE MILLIGAN: Mr Burge, what would have been the costs of the appeal? Can you give me a general guideline figure for instructions, preparation, appearing today?

MR BURGE: Your Honour, I would think £1,000.

JUDGE MILLIGAN: Are you working at the present?

MR MILLER: I am working part-time.

JUDGE MILLIGAN: I think you should make some contribution. What do you say?

MR MILLER: Is it all right to pay in instalments?


MR MILLER: Well, £500, your Honour?

JUDGE MILLIGAN: I think that is entirely appropriate.

MR MILLER: Could you make the payments as small as possible as I am paying the CSA at the moment.

JUDGE MILLIGAN: I order that the Appellant do pay a contribution of £500 towards the Respondent costs of the appeal payable at --- What would be your proposal?

MR MILLER: Your Honour, I am at the moment paying £250 to the CSA. I am living with my mother. That means they do not recognise my living costs.

JUDGE MILLIGAN: After the CSA and your living costs, what is your disposable income, Mr Miller?

MR MILLER: There are none, your Honour, because of the CSA and I have living costs which the CSA do not take into account when they make the assessment, your Honour, as a result of living with my mother.

JUDGE MILLIGAN: What is your proposal? How much per month?

MR MILLER: £10 a month, your Honour.

JUDGE MILLIGAN: I think you can do better than that, Mr Miller.

MR MILLER: Your Honour, honestly and truthfully £10 a month given that I am going to pay £500 I would appreciate it if you would make it £10 a month.

JUDGE MILLIGAN: The order I make is that you do make a contribution to the Respondent costs limited to £240 payable at the rate of £20 a month.

MR MILLER: Is your Honour lowering it to £240 in all?

JUDGE MILLIGAN; Yes, I am because I want it payable over a year and I consider that that is long enough. If you can pay it sooner than that all well and good.

MR BURGE: Would your Honour order legal aid taxation?

JUDGE MILLIGAN: Yes, legal aid taxation of the Respondent's costs.